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` Using & Creating Litigation Graphics to Persuade May 10, 2013 Jury Consulting | Litigation Graphics

Using & Creating Litigation Graphics to Persuade

May 10, 2013

Using & Creating Litigation Graphics to Persuade May 10, 2013 Jury Consulting | Litigation Graphics |

Jury Consulting

|

Litigation Graphics

|

Trial Technology

Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Table of Contents

Introduction to A2L Consulting

4

Thank you for downloading Enjoy your A2L Consulting eBook

5

14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not

6

Litigation Graphics, Psychology and Color Meaning

8

Information Design and Litigation Graphics

11

7

Ways to Prepare Trial Graphics Early & Manage Your Budget

16

In Trial Presentation - A Camel is a Horse Designed by Committee

19

5

Problems with Trial Graphics

20

3

Ways to Handle a Presentation-Challenged Expert Witness

22

10 Reasons The Litigation Graphics You DO NOT Use Are Important

24

Teaching Science to a Jury: A Trial Consulting Challenge

26

Trial Graphic: Could a Wall Chart Change How Litigators Prep Cases?

29

Explaining Patent Claim Language in Patent Litigation

31

Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias

33

Don’t Get Too Cute With Your Trial Graphics

36

Beyond PowerPoint: Trial Presentations with Prezi and Keynote

38

Why Patent Trial Graphics Matter-And Not Just for Confused Jurors

40

Top 5 Trial Timeline Tips

42

Antitrust Litigation Graphics: Monopoly Power and Price Fixing

44

Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic

48

Presentation Graphics: Why The President Is Better Than You

51

Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

56

Patent Comes Alive! Turning Patent Drawings into Trial Presentations

58

Automobile Litigation: Patent Infringement and Product Liability

61

Trial Presentation Too Slick? Here's Why You Can Stop Worrying

64

Power Plant Legal Animation and Effective Information Design

66

Power Plant Legal Animations and Effective Information Design (pt. 2)

67

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Learn About Nuclear Power Plants Through Litigation Graphics

70

The Redundancy Effect, PowerPoint and Legal Graphics

72

Semiconductor Patent Litigation Graphics (What is a MOSFET?)

74

Patent Infringement Trial Graphics: Illustration + PowerPoint

75

Trial Exhibits: Using the Document Call-Out to Persuade

77

Trial Exhibits: Antitrust, Pharmaceuticals & Hatch-Waxman Litigation

78

Memorable Markman Exhibits and Patent Litigation Trial Graphics

80

Trial Consulting: Using Trial Exhibits in Reinsurance Litigation

82

Trademark Litigation Graphics: Making Your Best Visual Case

84

Legal Animation: Learn About the Four Types Used in the Courtroom

86

Securities Litigation Graphics and Juror Communication

89

Environmental Litigation Demonstrative Exhibits and Trial Graphics

92

Defeating Class Certification with Trial Presentation Graphics

95

Construction Litigation Graphics: Construction Delay or Defect

97

6

Ways to Convey Size and Scale to a Jury

100

Trial Presentation Services: Not Just for Big Defense Teams

104

Aviation Litigation Graphics and Effective Demonstrative Evidence

108

Trial Presentation Graphics: Questioning Climate Change in Litigation

110

Trending: Mock Trial Testing of Litigation Graphics AND Arguments

113

Demonstrative Evidence & Storytelling: Lessons from Apple v. Samsung

115

Antitrust Litigation Graphics: Explaining Complex Information Simply

121

6

Studies That Support Litigation Graphics in Courtroom Presentations

124

Litigation Support: Making Sense of the Statistically Significant

126

9

Trial Graphics and Trial Technology Budget-Friendly Tips

132

4

Tips for Using Trial Graphics in Motions and Briefs

135

12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)

140

Using Trial Graphics & Statistics to Win or Defend Your Case

146

Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips

153

Printed Trial Boards Making a Comeback? It's Courtroom Deja Vu!

156

Demonstrative Evidence: Simplifying Technical Cases or Patent Cases

158

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Courtroom Exhibits: Analogies and Metaphors as Persuasion Devices

161

Courtroom Graphics in Labor and Employment Cases

165

Banking Litigation Courtroom Presentations

170

Perfecting the Patent Tutorial for Your Judge

174

Litigation Graphics in White Collar Cases

177

3D Printing to Change Courtroom Demonstrative Evidence

180

Explaining a Complicated Process Using Trial Graphics

186

3

Styles of Document Call-outs Used at Trial

190

The Best Ways to Use Calendars in Legal Graphics

193

5

Tips for Using TrialDirector and Trial Technicians Effectively

196

Making Good Use of Trial Director & Demonstratives in an Arbitration

197

Courtroom Presentations in E-Discovery Disputes

199

New Study: A Graphically Immersive Trial Presentation Works Best

202

Who Are the Best Demonstrative Evidence Firms?

203

5

Inspiring Information Design/Data Visualization Sites for Lawyers

205

Lists of Analogies, Metaphors and Idioms for Lawyers

207

Demonstrative Evidence: Using Maps as Courtroom Exhibits

209

12 Questions to Ask When Hiring a Trial Graphics Consultant

212

Sample One-Year Trial Prep Calendar for High Stakes Cases

214

Contacting A2L Consulting

217

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Introduction to A2L Consulting

A2L Consulting (formerly Animators at Law) offers litigation consulting services to law firms and corporations worldwide. The firm's services include jury consulting, the consultative design of litigation graphics and deployment of pre-trial technology, courtroom electronics and the personnel to support that technology.

A2L headquarters is in Washington, DC and it has personnel or a presence in New York, Miami, Houston, Chicago, Los Angeles and San Francisco. The firm's work routinely takes it to those cities plus Boston, Newark, New Jersey, Wilmington, Delaware, Philadelphia, Virginia, Maryland, Atlanta, Dallas, Phoenix and London, England. Since 1995, A2L Consulting has worked with litigators from 100% of top law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.

A2L Consulting was recently voted Best Demonstrative Evidence Provider by the readers of LegalTimes and a Best Demonstrative Evidence Provider by the readers of the National Law Journal.

Litigation Consulting Services

Litigation Graphics, Demonstratives, Physical Models and Animation for Litigation and ADR

Sophisticated PowerPoint

Presentations

Document Call-outs

Printed Large Format

Boards

2-D and 3-D Animation

Physical Models

Mock Trials, Focus Groups and Jury Consulting

Focus Group

Witness Preparation

Juror Questionnaires

Jury Selection

Post-Trial Interviews

Opening & Closing Statements

Trial Technicians, Courtroom Set-Up and Hot-seat Personnel

Trial Software

Video Encoding

Document Coding

Equipment Rental and Setup

Video Synchronization

E-Briefs

Scanning and Coding

Configure Database

Citations and Hyper-Linking

Digitally Convert Paper Briefs

Provide DVD, Flash Drive or iPad

www.A2LC.com | 800.337.7697 | www.LitigationConsultingReport.com

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Thank you for downloading Enjoy your A2L Consulting eBook

Twenty years ago, I taught myself animation and litigation graphics while in law school. I was drawn to the field, and it turns out that demonstrative evidence design comes naturally to me.

Once I started A2L Consulting in 1995 (then known as Animators at Law), I found that when litigators explain a difficult-to-explain concept to me, I see a number of pictures in my mind's eye. They arrive a bit like an a la carte menu of visual options.

In the decades since A2L's founding, I have been lucky to have a number of exceptionally talent people work at the firm. Some are jury consultants, others are trial technicians and many have been litigation graphics experts. As a national firm who has now worked with most major law firms, we have been lucky to create litigation graphics for many of the world's best litigators

Many call litigation graphics by other names like trial graphics, demonstrative evidence, trial exhibits, courtroom graphics, courtroom animations or even scale models. Together, they represent a visual medium that scientific studies suggest must be used by litigators who are in front of judges and juries if they are to persuade.

This book pulls together A2L Consulting's best articles on litigation graphics. Read this book, learn its lessons and you will be well on your journey to becoming a litigation graphics expert.

Enjoy it, share it and please send me your feedback. By all means, let me know if you have any questions about a case or other persuasion challenge you are facing. I'd be happy to speak with you.

Sincerely,

are facing. I'd be happy to speak with you. Sincerely, Kenneth J. Lopez, J.D. Founder &

Kenneth J. Lopez, J.D. Founder & CEO

A2L Consulting

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

14 Places Your Colleagues Are Using Persuasive Graphics That Maybe Youre Not

By Ken Lopez, Founder and CEO, A2L Consulting

People often focus on the use of trial graphics in, well, trials. And there’s no doubt that that’s where persuasive graphics, presentations, and exhibits are most often used. But you might be surprised to see how many other places are appropriate for the use of litigation style graphics. Here are 14 good examples.

1. In motions: A juror will never see them but a judge will. For more on this topic, read our article on using litigation and trial graphics in motions.

article on using litigation and trial graphics in motions . 2. In briefs: Generally, trial graphics

2. In briefs: Generally, trial graphics are used for perfectly normal reasons in briefs. Occasionally, an attorney will use them for the sake of humor or just to prove a point. See this comical courtroom brief.

3. In depositions: One of our clients recently asked us to prepare litigation graphics for depositions with an eye toward using those same graphics at trial.

4. In mock trials: These can be an excellent investment of money and time in a case that is large enough and significant enough to justify the use of litigation graphics during the mock. See our article on using litigation graphics during a mock trial.

5. In pre-trial hearings: We all know graphics are used in Markman hearings, but they are also frequently used in summary judgment hearings and in hearings on motions to dismiss. Again, the jury will not see the exhibits but a judge will.

6. In arbitration and alternative dispute resolution: This use of trial graphics is overlooked more than others. Many arbitrations follow rules of evidence and resemble trials, and litigation graphics are quite appropriate in them and in ADR generally.

7. In class certification hearings: Graphic demonstrations can be used in many aspect of class actions, and the issue of “predominance” is one in which they are especially useful.

8. In advocacy and lobbying presentations: Hydraulic fracturing is a controversial issue, and the graphic that we prepared shows how fracking works and may dispel some unwarranted myths and fears about fracking. It's received 60,000 views as of this writing demonstrating how one might use PowerPoint and video to get a message out.

9. In presentation graphics: Most of us prepare and deliver presentations as part of our work. This article on presentation graphics showing how the President prepares and delivers an effective visual presentation using persuasive graphics is a good guide for any of us.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

10. In e-briefs: This technique is being used more and more frequently by trial lawyers, and e-briefs are now including litigation graphics, sometimes animated graphics too.

11. In e-discovery disputes: Sometimes, a courtroom presentation consultant will demonstrate what documents were missing and why sanctions were warranted. Sometime the graphics illustrate, to the contrary, that the documents were completely or largely produced or that the matter in dispute is not large enough to require sanctions. E-discovery hearings are utilizing persuasive graphics more and more.

12. In settlement discussions: We have seen trial graphics prepared for settlement many times in the last two decades. Recently, however, the sophistication demanded of those graphics has been on the rise. Sometimes, even high-end 3-D animations are prepared. The trick, of course, is to balance the persuasive benefit of the graphics with the risk that settlement talks fail, and you tip your hand leading up to trial.

13. In pre-indictment meetings: As government budgets have increased over the last four years, so too have pre-indictment meetings with prosecutors. We have prepared countless 'clopening' style presentations for these meetings hoping to help our client avoid indictment altogether. Well- thought-through persuasive graphics may help avoid a negative life or company changing event.

14. In technology tutorials: No longer are technology tutorials used only in patent cases to help educate the judge. Litigators are requesting to submit them in other cases where educating the judge is beneficial to both sides. This could include complex financial cases, large antitrust matters with a complex product at issue and many other types of cases.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Litigation Graphics, Psychology and Color Meaning

by Ryan H. Flax, Esq., Managing Director, Litigation Consulting, A2L Consulting

Managing Director, Litigation Consulting, A2L Consulting As a litigation consultant, one of my primary

As a litigation consultant, one of my primary responsibilities

is to help litigation teams develop and effectively use

demonstrative evidence to support their trial presentation. The primary means of doing this is to create litigation graphics, which are most commonly used as PowerPoint slides that accompany oral argument and witness testimony.

A lot of what goes into creating effective litigation graphics

relies on the evidence to be presented. If the evidence relies on a document and, specifically, on a particular part of that document, a document callout is standard fare. If damages are the issue, it’s not uncommon to use a chart or table to illustrate to the jury how they should add up the money to arrive at the desired result. However, a lot more goes into designing and developing really effective litigation graphics than the clever manipulation of evidence. Did you know that color plays a major role?

Litigation graphics are almost never black and white they almost always involve the use of color. Most colors carry psychological (and even physiological), cultural, personal, emotional, and expressive implications that can impact how persuasive you are when using them. Here’s an example:

persuasive you are when using them. Here’s an example: Looking at the two photos of President

Looking at the two photos of President Bush to the right, minus any personal political views you may have, which president is more trustworthy looking? I bet you said the one on the right. Do you know why?

In modern, holistic medicine, chromotherapy is used to heal with color. This form of treatment dates back millennia to ancient Egypt, China, and India. A more prominent use of color therapy occurs in environmental design, which considers the effect of color on health and behavior and develops interior design, architecture, and landscape design accordingly. An interesting example is use of the color Baker-Miller Pink (R:255, G:145, B:175), affectionately known as “drunk tank pink” because it is commonly used in jails to keep violent prisoners calm.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Human responses to color are not just biological, but are also influenced by our culture (in China the color yellow symbolizes royalty, but in Europe it’s purple that plays this role). David McCandless created this amazing color wheel (right) to illustrate how different cultures interpret colors (or “colours,” as Mr. McCandless is an author and designer from the U.K.). People (and by people, I mean jurors and judges) also respond to colors in individual ways. Although research reveals variables that help explain human responses to color, it is also true that is our own color preferences are important to us and partially dictate the effect color has on us.

to us and partially dictate the effect color has on us. Color also causes emotional effects,

Color also causes emotional effects, which depend partly on the color’s surroundings and partly on the ideas expressed by the work as a whole. There are two opposing ways to use color in graphics (as in art):

local and expressive color. At one extreme is local color, which is the color that something appears when viewed under average lighting conditions, e.g., a banana is yellow. At the other extreme is expressionistic color, where artists use color to express an emotional rather than a visual truth. Just look at the famous art from Pink Floyd’s The Wall here the use of dark blue, gray and black in the background convey an intense feeling of sadness and depression, while the blacks and reds of the figure convey danger and anguish. Both of these color concepts effect a viewer’s emotions. The expressionistic use of color is very important in the field of litigation graphics.

Why?

is very important in the field of litigation graphics. Why? Jurors (and judges to an extent,

Jurors (and judges to an extent, as human beings) make decisions at trial based on their emotions above all else (download and read this paper on the subject by Todd E. Pettys, Associate Dean at the University of Iowa College of Law). Concepts like confirmation bias and research on decision making support this. Two thousand years ago, Aristotle observed that the most persuasive arguments are those that appeal, at least in part, to the audience’s emotions (Aristotle, On Rhetoric: A Theory of Civic Discourse 112-13 (George A. Kennedy trans. Oxford Univ. Press 2d ed. 2007).

Traditional artists have used color to evoke emotion in specific ways:

Red heat, passion, danger, optimism

Yellow warmth, caution, fear, cowardice

Blue responsibility, trustworthiness, compassion, honesty, integrity, morality, coolness, quality

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Orange confidence, creativity, fun, socialness

Green natural, healthy, harmony, cheer, friendliness, immaturity

Purple regality, intelligence, wealth, sophistication, rank, shock

Gray neutrality, ambiguity, dullness, somberness

Black evil, unknown, treachery, depression, undesirability, danger, falsity

White innocence, purity, fairness, conservatism, harmlessness, transparency

Pink femininity, sweetness, liberalism

Brown natural, solid, sadness

These same principles are applied today in information graphics and the graphic arts. For example, according to Mr. McCandless’s color wheel (above and at link), the color black represents and connotes authority, the color blue intelligence and rationality, and purple virtue interestingly, he indicates no culturally based color in Western culture for wisdom or trust.

Did you ever notice how many law firm logos are blue? Why do you think that’s the case?

Here’s an exemplary litigation graphic that might be used by an expert witness using the above- discussed color principles to evoke a sense that the expert is honest, unbiased, and intelligent:

It may look simple, but a lot of thought went into its design. The overall color palate of blue, purple, and gray is intended to evoke trust and neutrality. Furthermore, the light blue color used in the text boxes is intended to again express that they are relaying true information. The accompanying icons (the check and x-marks) are similarly colored so as to relay that the top statement of opinion is trustworthy (blue) and that the second two are warnings (red) for jurors that they should not believe what they heard from the opposition’s expert witness.

what they heard from the opposition’s expert witness. If you want to be more persuasive at

If you want to be more persuasive at your next trial or hearing, let us worry about these details to help you be your best.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Information Design and Litigation Graphics

By Ken Lopez, Founder and CEO, A2L Consulting

The term information design is less than fifty years old. The use of specialty trial graphics in the courtroom started less than thirty years ago. Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged.

Wikipedia describes information design as "the skill and practice of preparing information so people can use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual representation can express its meaning more clearly to the viewer." I would call it simply the effective and efficient presentation of information. Applied to the litigation graphics consulting industry of which I am a member, I would add the word persuasive. This is true since the job of the modern litigation graphics consultant is to persuade not merely to present information.

Effective information design is not new as evidenced by Charles Minard's 1869 chart below. It plots the size of Napoleon's 1812 army (width of the beige and black areas), the distance traveled, the time elapsed and temperature on the bottom. In a nutshell, it tells the ill fated story of the near complete elimination of Napoleon's 400,000 man army due to battle deaths but mostly deaths from sub-freezing weather conditions. On the original, each millimeter eerily and with clever mathematical alignment represents the deaths of one thousand men. Looking at the chart, it's no wonder Tchaikovsky penned the 1812 Overture to celebrate the Russian victory defending Moscow.

Overture to celebrate the Russian victory defending Moscow. [ courtesy Wikipedia Commons ] A2L Consulting |

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Of course, effective information design is around us every day. Mostly, it goes unnoticed except by those of us who study it, and that is exactly the point. When we instantly know which bathroom door to walk into, what dangers lie ahead in the road, which button to press on the latest Apple product or which subway line will get us to where we are trying to go, we are likely experiencing effective information design. The map of the Washington DC Metro is one of my favorites. A comparison of the current map and a map drawn to scale is below. It is pretty clear which works best, and it strikes me as funny that the scale version looks a lot like the style of NYC's map which recently underwent a redesign.

style of NYC's map which recently underwent a redesign. [ courtesy Wikipedia Commons ] A2L Consulting

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade [ courtesy Wikipedia Commons ] In the courtroom, incorporating

In the courtroom, incorporating information design with trial graphics requires the talents of a highly skilled practitioner. This is true since the viewer (judge and/or jury) will not usually have much time to consider or quietly reflect on the graphic. The courtroom viewing experience is an altogether different one than studying a printed subway map or reviewing the latest New York Times information graphic. Instead, the courtroom information design or trial exhibit is something that must be quickly digested and designed with maximum persuasive impact. I like to think of litigation graphics as telling a one sentence story as opposed to Charles Minard's paragraph-long story about Napoleon.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

For example, you might want to say a firm or person is speaking from both sides of their mouth:

a firm or person is speaking from both sides of their mouth: Or you might want

Or you might want to say someone is playing a shell game with company ownership:

say someone is playing a shell game with company ownership: or you want a jury to

or you want a jury to remember a key term like video tagging in patent litigation:

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade or you might want to summarize how the standard

or you might want to summarize how the standard of care requiring a single diagnosis for multiple medical symptoms was not met:

single diagnosis for multiple medical symptoms was not met: It is pleasing for me that the

It is pleasing for me that the worlds of information design and trial exhibit design have merged in a handful of trial graphics consultancies. These firms are putting out amazing graphics on a daily basis that persuade when millions or billions of dollars are at stake. I am honored to be a part of this industry and proud of my firm's achievements in advancing its growth and acceptance.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

7 Ways to Prepare Trial Graphics Early & Manage Your Budget

by Theresa D. Villanueva, Esq., Director, Litigation Consulting, A2L Consulting

One of the many questions I often hear is: how far in advance should we engage a trial consulting or trial graphics firm?

Generally, we prefer to work with the trial team sooner rather than later, but it is not uncommon to get a last minute call for a trial that starts in a week or even a few days. However, the longer we have to prepare the better.

One of the benefits of starting earlier is that we can begin to develop the necessary rapport with the trial team and work together to develop case themes and a visual story - all tasks best facilitated by more time. Also, more time allows for additional prep time for presentations and trial graphics as well as other things such as electronic briefs, trial technology, and jury consulting, or even a mock trial/jury research.

jury consulting , or even a mock trial/jury research . Getting an early start can alleviate

Getting an early start can alleviate a lot of stress. Of course there will always be the last minute changes, as you get closer to trial, but at that point the changes are typically minor. However, more time to prepare can sometimes present as many challenges as having a short time to prepare.

One of the challenges we often face when we are given the luxury of engaging with a team earlier rather than later is managing the budget. It is easy for the trial team to get carried away when you have months to think about the demonstrative evidence. I’ve seen many times where teams either get bogged down with “nitty gritty” details and can’t agree on a color, to teams that want to see some of the craziest trial graphics ideas they can come up with, “because we have the time, right?” But time does not always equal budget.

I have laid out a seven tips below on how to keep things in check when getting an early start on preparing trial graphics.

1. Set a schedule and stick to it

After our first meeting with a team, it is always helpful for us to set a schedule for team meetings, first drafts etc. Sticking to this framework will keep everyone in check and alleviate the uncertainty about how to proceed and when to expect content to review.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

2. Use this time to collaborate with your trial consultants not just reviewing the trial graphics

What better way to utilize this time than to work closely with your trial consultant? It doesn’t make much sense for our team to spend time developing 40 slides for opening statement when you haven’t even begun to think about it. Take this time to review the case and discuss the story and case themes with your trial consulting team. Telling your story and getting an “outsider's” feedback can help you to start weeding through the details.

3. Avoid the hurry up and wait approach

Once we are engaged, trial teams will sometimes want to see things immediately for review because they are excited to get started, and then they disappear for weeks. My suggestion is if you have the time, take the time. If we are engaged very early on, many of your case themes may not be fully developed so it is probably not in the best interest of your budget to make trial graphics that are likely to be irrelevant later. Instead, work with your consultants to develop the story first and then create the trial graphics.

4. Expect monthly budget updates from your trial consultant

Keeping the team apprised of where things stand with their budget is essential. Doing a regular assessment of costs not only keeps the client and our team aware of the level of effort being put into the project, it also can help head off an uncomfortable post trial discussion about the bill. Additionally, it helps our team assess the level of effort we are putting in. Are we spending too much time at the front end knowing that there will be a time-intensive crunch at the end that will throw everything off budget?

5. Don’t get hung up on the little things

This is key in any project whether we have one year or one week to prepare. Spending time discussing what shade of blue to use and wanting to see the same graphic with these different shades of blue is not a valuable use of time or budget. Unless there is a color that vehemently offends you, trust that your trial consultant and artists know what colors (or shades of blue) will work best.

6. Define the scope and layout a framework of the graphics

This ties directly in with number 2 above. Work with your consulting team, and layout a framework of what trial graphics are needed. Getting started in advance gives our team and yours the luxury of thinking about the case and what key demonstratives are really going to give you the edge you need. One way we have accomplished this successfully is to develop either a MindMap or an all-encompassing list of possible graphics that we see – everything from “A to Z.” Then, meet with the team to discuss how the graphics will look? What information will it convey? Do we really need it? Taking this approach, a lot less graphics end up on the cutting room floor, so to speak.

7. Be mindful of revisions

Revisions are many times the reason budgets get out of control. Having months to look at and think about the trial graphics can lead to too many revisions. One way to avoid this is to not make edits until your draft outlines are closer to final, and provide edits/revisions all at once. Providing edits/revisions piecemeal can really inflate time and budget.

So, when time is not of the essence, use that to your advantage, and remember these quick tips above to alleviate stress and bring your trial graphics needs in right on budget.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

In Trial Presentation - A Camel is a Horse Designed by Committee

By Ken Lopez, Founder and CEO, A2L Consulting

by Committee By Ken Lopez, Founder and CEO, A2L Consulting There is an old expression that

There is an old expression that a camel is a horse designed by committee.

The expression means that when many individuals design something as a group, every imaginable feature will go into the finished product and it will end up with many important features. But the product will have lost its beauty and sometimes will have lost some of its usefulness as a complete entity.

Working with trial teams to create a trial presentation can sometimes feel a bit like designing a horse and ending up with a camel. Many people provide lots of input on a particular presentation and sometimes, it ends up that too many features have been added to a single trial presentation. Unless a strong leader seizes control and dictates the final content, the project can go in any number of directions at once, and it may fail to be as outstanding a product as it can be.

An easy business comparison is Apple. There, great design is at the core of the company's success and has made it the most valuable company in the world. Since the 1990s, the man behind this great design is London-born designer Jonathan Ive. Ive, Apple’s senior vice president of industrial design, has been responsible since 1996 for leading a design team widely regarded as one of the world’s best. Ive has been said to have “the obsessive desire to create products that are meaningful to people.”

I’ve is ultimately responsible for the design of the iMac, the iPod, the iPhone and the iPad. It was he who brought the great designs to Steve Jobs for his consideration. Jobs would pick among Ive’s proposed designs. Fortunately for us, Jobs was right most of the time. What we never see from Apple, however, are all the rejected designs.

At A2L, we see ourselves as the Jonathan Ive of a trial team, constantly bringing great trial presentation ideas and prototypes forward with the hope that the first chair litigator will see something that he or she likes. In my experience, the stronger the leader, the more likely it is that a good trial presentation design approach will be selected and the camel-like result avoided.

Our recommended approach when lots of individuals need to provide input on a project is simple. Everyone has a voice, but only one person has a vote.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

5 Problems with Trial Graphics

by Ken Lopez, Founder & CEO, A2L Consulting

Just because you use trial graphics at trial does not mean you increase your chances of winning at trial. In fact, when you choose to use trial graphics, many risks are introduced. Used the wrong way, trial graphics, litigation graphics and demonstrative evidence can do more harm than good.

Accordingly, I think it is critical for a lawyer to carefully manage these risks. The good news is that all of these risks can be easily mitigated. And, used properly, the benefits of using trial graphics far outweigh potential risks.

of using trial graphics far outweigh potential risks. Here are five problems that commonly arise when

Here are five problems that commonly arise when trial graphics are used and some strategies for reducing your risk to near zero.

1. Technology failures: Quite a bit can go wrong with technology in the courtroom. This includes not getting permission to use it in the first place, projector bulbs dying with no replacement, projectors that barely work, videos that are difficult for counsel to run, printed trial boards that are not sized properly for the room and much more. To manage these we certainly recommend the use of the highly experienced trial technician. Here are some resources that will help you manage the risk of a technology failure.

2. Reading bullet points: We have written about this topic before. For a variety of valid scientific reasons, if you read your slides or read your bullet points, you are doing more harm than good. It’s one of the most common mistakes presenters make. Here are some articles that explain this in more detail.

3. You decide to make your own slides: You're smart. You own the latest copy of Powerpoint. You know enough to not use spinning entrance animations and the applause sound effect. So, why can't you just start making slides? Well you can but – when you do this you’re not efficiently using your client’s money (our billable rate is much lower than yours) and as we described in a previous article, you’re probably not going to come up with the best graphic for the task time after time. Remember we do this everyday of the year, sometimes consulting on hundreds of cases in single year.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

4. You build your trial story and outline in Powerpoint. Quite a few litigators write their outlines in Powerpoint, and I don't think it is an ideal approach. Often, they will start writing out slide after slide of the points they want to make, then they hand that to us and say, make these look good. This is not a good approach. First, your billable hour is higher than ours, and you should be working in Word for efficiency. Second, handing us a series of slides deprives us both of the chance to improve the story together. Third, there are other more beneficial methods to developing your outline. Here are some helpful articles that touch on these points:

5. The wrong points are emphasized: I like to say that the documents at trial are the words in a sentence, the electronic trial graphics are the periods and the printed trial graphics or highly thematic electronic exhibits are the exclamation points. For this last category, the key is to make sure you are not emphasizing the wrong thing. The best way to do that is to test the case with mock jurors or a mock judge panel. If that cannot happen because of budget (time is rarely a good excuse), then at least work with your litigation consultant to get some commonsense responses to the material. Here are some related articles:

Most litigators use Powerpoint to display trial graphics at trial. However, in the wrong hands, Powerpoint can be a dangerous tool. Sometimes, it gives the illusion of adding value when it is actually doing damage.

Powerpoint doesn’t ruin a presentation’s impact, people do.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

3 Ways to Handle a Presentation-Challenged Expert Witness

At A2L, we have the privilege of working with experts in many diverse and highly technical fields, such as software patents, polymer patents, semiconductor patents, medical device design, environmental remediation, construction, financial disclosure, economic damages, transportation safety, corporate management and many more.

transportation safety, corporate management and many more. When we work with these highly educated and often

When we work with these highly educated and often brilliant specialists people whose testimony can often make the difference between victory and defeat for our clients our task is, quite simply, to help them be as effective as possible. We achieve this primarily by helping the attorneys painstakingly prepare them for their deposition testimony before trial and for their direct testimony during trial, including the development of visual presentations that track their testimony. Experts must not only be well prepared for their own set testimony, but even more so for every possible attack by cross-examination, which is really where the case can be won or lost.

In general, experts fall into two camps when it comes to their ability to use visual aids to support and even explain their testimony. Some welcome the help from trial graphics consultants so that their highly technical presentation will be better understood by a jury of laymen (and even the judge, who may not be technically savvy), but some are already quite certain that they will be well understood by judges and juries and don't think “charts” are going to help.

This article provides tips for how a litigator can deal with the latter, more difficult, type.

Twenty years ago, many trial lawyers believed that trial graphics were unnecessary to help them be persuasive to juries and judges. But now we have studies showing the overwhelming benefit of using visual tools in the courtroom, and especially because the pace at which people (remember, judges and juries are people) expect to receive information is ever increasing, these old-school views are no longer valid.

So how does one convince an expert witness who is a specialist on his or her subject matter and often testifies about it in court that he or she should accept some help at being understood?

I suggest three possible strategies.

Appeal to the expert’s ego. Tell the expert that most jurors and many judges are just not as smart as the expert, so they need the visual tools to help them understand it. A useful quote may inspire a willingness to accept the need to communicate more effectively. Machiavelli said, “Before all else, be armed.” But, be armed with the right tool and the understanding that the typical juror may not have a college degree and is most used to learning by watching television.

Video-test the expert. If the expert has shown any interest in improving the quality of his or her testimony, there is no better way to begin than using repeat video tests. This can be done with or without

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

a live mock jury or an online evaluation service. In the world of performing, there is a cliché that is equally useful for the courtroom: A bad dress rehearsal means a great performance.

Give up. Why try to force someone into a situation that he or she is not ready for? The expert, whom you need to look as confident as possible, will simply register discomfort on the stand. And in expert testimony, persuasion is 20% what you know and 80% how you feel about what you know. The reality is that, if the suggestions above have failed, this is probably the wrong expert, and next time, you should shop around. As a litigator, you should no more have to explain the need for thoughtfully developed visual aids to an expert any more than a client should have to explain this to you. After all, one cannot after all expect to solve today’s problems with yesterday’s tools.

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Using & Creating Litigation Graphics to Persuade

10 Reasons The Litigation Graphics You DO NOT Use Are Important

Like creating a new logo or a new ad campaign or hiring a speech writer - or perhaps the best comparison of all, like a trial attorney preparing for trial - we normally find that a lot of work goes into creating draft litigation graphics that are not ultimately used at trial, in a hearing or for some other originally intended purpose.

Michelangelo, sculptor, artist and architect, said, "Every block of stone has a statue inside it and it is the task of the sculptor to discover it."

it and it is the task of the sculptor to discover it." Creating litigation graphics is

Creating litigation graphics is a lot like that. When we come into a case, more often than not the trial team has not considered how to present the case, and we are just months or weeks from trial. Our job is to quickly understand the case, assess the trial team's style, whether creative or plain, whether wordy or more modern, whether multimedia or single-channel, and then begin generating litigation graphics, sometimes hundreds of them, in short order.

What may seem like chaos is actually a well-rehearsed act of creativity. Like Michelangelo's block of stone, we begin to visualize the finished piece by chipping away the unnecessary portions of stone. In practical terms, that means running a lot of litigation graphics by the trial team and then paring down. So, in a sense, we have to both build the stone and sculpt it. From chaos comes order.

Just as a branding firm will usually give you three to nine designs to pick from, or as a speech is refined over time, or as a trial team will abandon themes, arguments, or claims at trial, when creating litigation graphics the final product is properly a product of a whittling down process. Thus it is in a trial team's best interest and the client's best interest to accept a large number of litigation graphics early on that won't be used in the final product.

You see, without a set of boundaries or a map to navigate by, the trial team has to work harder under increasingly stressful conditions to express their desires clearly to the litigation graphics consultants. Thus, it is best to be frugal closer to trial rather than earlier in the development of litigation graphic designs. Otherwise, one is being penny-wise and pound-foolish.

Here are 10 reasons that those bits of creative stone you chipped away when creating litigation graphics were more important than the finished product.

1. You may not know what you like until you know what you don't like. Whether you are picking out new furniture, a new car or deciding on the right approach for litigation graphics, it is normally easier to rule things out than conjure the perfect end result.

2. You know it when you see it. Many people have a good artistic eye but lack the experience and training to execute the vision. This is typical and a good quality among most litigators.

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Using & Creating Litigation Graphics to Persuade

3. Choosing from a menu of options is easier than designing from scratch. You don't often go to a restaurant and say I'd like you to combine these 10 ingredients into something I like. The same is true of litigation graphics. You order from a menu, because it is easier for you.

4. Choosing from a menu of options is faster than designing or describing in precise detail what your end product should look like (and your hourly rate is higher than ours).

5. It’s easier to pick and choose elements. If you have ever been involved in a logo design project or redecorated a house, you'll surely have experienced this phenomenon. You'll often like one thing from here and another from there. It's normal.

6. You can avoid the problem of “a horse designed by committee.” (It results in a camel, in case you were wondering.) A graphic in draft form has some amount of stickiness; it is less likely to be radically changed than an idea in someone's head.

7. This process helps the litigation graphics firm match your style earlier, not later. Different trial teams have wildly different approaches. One of the best ways to assess a team's approach is to put work in front of them and assess their reaction. This is why we insist that the first review of any first draft presentations is done in person or by video call. Our litigation graphics consultants must work from the team's reactions.

8. You find an opportunity to assess admissibility. Sometimes a graphic that someone on the team wanted to create is just not going to be admitted, but it needs to be created anyway - just to get ruled out. At the insistence of counsel, we've put devil horns on alleged thieves, we've made people look like they had a mug shot, and we've illustrated the opposing party's image to look like a robber baron. We know they won't be used and won't be admitted, but it was an exercise that had to be seen through.

9. Time to reflect produces better results. Whether it be a new way of looking at analogy or a way we open the door to evidence we don't want in - putting more exhibits out there helps us deliver a high level of creativity.

10. Most importantly, without having gone through the process of many drafts becoming one final graphic, you would not have arrived at what is your David or Sistine Chapel - whether that be your opening presentation, your Markman hearing, your patent tutorial, your ITC hearing or your arbitration, without all the efforts to get there.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Teaching Science to a Jury: A Trial Consulting Challenge

By Ken Lopez, Founder and CEO, A2L Consulting

Very often, trial attorneys in complex cases need to explain extremely difficult and elusive scientific concepts to jurors who are not well versed in science. The lawyer’s job is to convey the science correctly to the jury so that they can make a rational decision yet not to bury the jury under a blizzard of scientific terms and concepts that they will never understand.

The answer is to use visuals in the form of photographs, schematic diagrams, animation, timelines, demonstrative evidence, document call outs or whatever is suited to the situation, and to explain them in terms that jurors who are not specialists in the scientific subject can understand.

Analogies (in other words, what is something like?), contrasts (how is something different from something else?), and simple definitions (what are the components of an object? how is it used?) are very useful tools for the trial lawyer.

As Jan D’Arcy wrote in 1998 in Technically Speaking, “Many scientific subjects are hard to describe; they can be difficult to see, touch, measure or imagine. A presenter should find ways to illuminate a concept in known

terms with the least amount of

your information clearly to your audience. Similes, metaphors, and analogies are comparisons that can often lead to amazing insights.”

Comparisons and contrasts are two of the best ways to translate

The brief movie below shows how restenosis (the formation of new blockages at the site of an angioplasty or stent placement) can form in blood vessels when a non-drug-eluting stent (one that does not contain an anti- stenosis drug) is used by a heart surgeon. This is a highly technical medical subject, yet after seeing the presentation, jurors will understand how stents work and why such drugs are used. Just months ago, this A2L Consulting animation and others like it helped a long-time client win the 6th largest patent litigation verdict in history totaling $593,000,000.

client win the 6th largest patent litigation verdict in history totaling $593,000,000. A2L Consulting | A2LC.com

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Below, we created a very straightforward, highly memorable patent litigation graphic that shows one person walking his own path, away from conventional wisdom, to show that an inventor’s idea was unique and non- obvious.

show that an inventor’s idea was uni que and non- obvious. Similarly, we have devised a

Similarly, we have devised a 78-second video presentation that details the challenges of inbred reproduction, and the advantages of hybrid reproduction, in the corn plant. This is easily understandable to a juror, even one who does not have a background in biology or food science.

to a juror, even one who does not have a background in biology or food science.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Finally, the schematic diagram below uses the excellent analogy to the letters and numbers in a license plate an object familiar to jurors to indicate how many possible structures of a chemical compound can exist and thus how the one structure designed by a client was not obvious and therefore was deserving of patent protection.

obvious and therefore was deserving of patent protection. As Matthew Weinberg, CEO of the scientific consulting

litigation relies upon a strong science story. An expert who can explain the science easily and clearly makes a difference. Juries want to understand the science and can be helped by an expert who makes it interesting and believable."

We believe that no scientific concept is too difficult to teach to a jury. In our 16 year history, we have found a way to successfully teach and persuade about everything from the genetic development of cancer, genetically modified corn, stem cells, physical separation in patented pharmaceuticals, metal fatigue, the transportation of air, water and ground pollution, DNA, bioequivalence, how allergies work, epidemiology, physics, chemistry and countless applied science medical principles.

With the right combination of trial team, trial consulting firm and expert consulting firm, any concept can be made understandable by combining a good explanation and a good visual.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trial Graphic: Could a Wall Chart Change How Litigators Prep Cases?

By Ken Lopez, Founder and CEO, A2L Consulting

I have had the great pleasure of working closely with hundreds of world's best litigators since 1995. One common theme they communicate is that they see simplifying their case, prior to walking into the courtroom, as part of their job. Today, I am writing to share about a 'new' tool designed quite precisely for this purpose.

The new tool is a modern software version of a decades-old technique modeled on centuries-old principles. In general this tool facilitates the visualization of complex and interrelated ideas. Specifically, I am talking about a process called mind mapping.

Mind mapping is a 60s-era-sounding term for an activity that seems, at first glance, like it must have certainly been born on the left-coast. In a sense, both of those things are true. It was in fact developed

in the era between the 50s and 70s, and it was born on a left coast of sorts. However, this 'left coast' is

really the western suburbs of London.

Regardless of mind mapping's nonconformist origins, I believe it has a place in the toolkit of the modern litigator. After all, many thought-leading litigation trends were born in California or places like it (e.g. demonstrative evidence, jury research, courtroom animation, etc.).

A small version of a 30 inch x 90 inch litigation mind map is shown below. I encourage you to download a

full-sized .pdf version of the actual chart to get a feel for how it is laid out.

of the actual chart to get a feel for how it is laid out. This sample

This sample mind map is based on a group of cases where we have used mind mapping as a system for quickly understanding a complex case in a short period of time, brainstorming a trial presentation approach and laying out specific exhibits. In this chart, green circles represent likely demonstrative exhibits, red boxes represent problems with our case that require additional strategic attention and the yellow boxes contain the background information on the case, trial team and strategy.

The same approach we take for trial graphics development can easily be taken by a trial team organizing a complex case with many experts, theories and potential trial strategies. In addition to the obvious organizational benefits, the beauty of using this approach is just how easily one can pick up where one left off. I have gone a month or more between deeply complicated meetings and been able to start precisely where we left off without spending time trying to re-teach the team everything that was discussed weeks or months before. This is one of those benefits that I think one has to experience to believe.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

While litigation-specific tools do exist that offer a some of the features in today's mind mapping software, I prefer using a flexible tool that works very well. I have used two products: 1) Tony Buzan's iMindMap (he is considered the father of modern mind mapping); and 2) Mindjet's MindManager. I prefer the latter, as I find it to be a bit more business-oriented.

When working with our firm on trial presentation strategy, we will likely be using mind mapping either internally or overtly. However, we are interested in testing this approach with a trial team at the front-end of a case rather than within the time period we are more typically consulting with the trial team (6 months prior to trial). If you would be interested in testing this technique with your trial team, we are willing to do so gratis for a limited number of trial teams working complicated cases with at least $10 million at stake. The output will be a wall chart for your team that you can refer to on an ongoing basis.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Explaining Patent Claim Language in Patent Litigation

Quick, tell me what this patent claim language means:

Unless you’re a patent geek like me, you probably haven’t the foggiest idea how to interpret this language. But if you are an attorney in a patent infringement litigation, your job is not only to explain to a judge and jury what claim language means, but do so in a convincing and persuasive manner. If the fact finder remains as perplexed after your presentation as you were on first reading of these words, you are unlikely to win your case.

reading of these words, you are unlikely to win your case. Would it help you understand
reading of these words, you are unlikely to win your case. Would it help you understand

Would it help you understand this claim language from U.S. Patent 7,657,849 if I showed you one of the drawings from the patent? I suspect it will, so here’s one above.

So what have you learned now? Now you know what the claim probably means by “a touch-sensitive display” because this figure says right on it that you’re looking at a “Touch screen.” Still, what does the claim language cover, specifically? What sort of product might infringe this claim? Here’s a big hint:

This patent is owned by Apple Inc. I’m sure you’ve guessed it now – this patent is written to cover this product below:

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Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade Seeing the iPhone, as in the image to the

Seeing the iPhone, as in the image to the left, makes most of the claim language pretty clear. This is the now-famous Apple “slide-to-unlock”

patent that covers the way users unlock the screen on an iPhone or iPad

to use the device. Hasn’t the language become so much clearer now

that you have the graphical information I’ve provided by showing you an iPhone?

People, including judges and jurors, are usually combination learners, and visual information is an important component of teaching and being persuasive. Now that you’ve seen the iPhone, it’s probably pretty clear

to you what the claim term “display an unlock image” means. Also, it’s probably equally clear what the claim means by “transition the device to

a user-interface unlock state if the detected contact corresponds to

moving the unlock image along a predefined displayed path” – it means that the device senses that you’ve slid your finger along the arrow I

added to the iPhone picture. Pretty clear now, isn’t it?

Now, what other products might infringe this Apple patent? What other products might use this type of unlocking feature? What about this one?

Wow, HTC's new phone looks pretty similar, doesn’t it? Are you convinced? Maybe not completely yet, but you cannot deny that the similarities in this comparison are compelling. This is a simple example of why trial graphics are so important, particularly in patent litigation when explaining claim language.

are so important, particularly in patent litigation when explaining claim language. A2L Consulting | A2LC.com 32

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Using & Creating Litigation Graphics to Persuade

Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias

by Ken Lopez, Founder & CEO, A2L Consulting

A fascinating new study in the field of social psychology indicates

that the type font in which an argument is presented has an effect on how convincing it is. For trial graphics consultants and litigators alike, this is potentially very big news.

The study, published in the Journal of Experimental Social Psychology [pdf], tested the effectiveness of political arguments in convincing people to change their minds and also tested people’s attitude to a hypothetical defendant in a mock trial.

attitude to a hypothetical defendant in a mock trial . It is well known that people

It

is well known that people tend to disregard arguments that vary from their own longstanding views and

to

take note of arguments that support their views. This phenomenon is known as confirmation bias. For

litigators and trial graphics consultants, we know this means judges and jurors will only closely pay attention long enough to confirm what they already believe - so, we need tactics to overcome this bias.

The idea behind such research was to present the arguments in hard-to-read type faces (e.g. light gray bold and italicized Haettenschwiler, and, the scorn of all design professionals, Comic Sans italicized) and to see whether confirmation bias was just as strong as when the arguments were presented in normal, easy-to-read type (Times New Roman).

Below are two sample trial graphics that compare two of these fonts. The first image uses easy-to-read Times New Roman for the callout.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade And the second uses hard-to-read light gray Comic Sans

And the second uses hard-to-read light gray Comic Sans italicized.

second uses hard-to-read light gray Comic Sans italicized. The result of the study was that confirmation

The result of the study was that confirmation bias was moderated by the use of the hard-to-read type. Normally, those who believed the defendant was guilty would stay with that view after reading the arguments pro and con, and the same would be true of those who thought the defendant was innocent. They wouldn’t change their views.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

But with the hard-to-read type, more people began to seriously consider the arguments against their initial position.

"We showed that if we can slow people down, if we can make them stop relying on their gut reaction -- that feeling that they already know what something says -- it can make them more moderate; it can have them start doubting their initial beliefs and start seeing the other side of the argument a little bit more,” said graduate student Ivan Hernandez, one of the leaders of the study.

What might this research mean for trial graphics consultants and litigators?

First, there’s no question that confirmation bias exists among jurors. A juror who, because of the opening statement or for some other reason, approaches the trial evidence with a certain perception, is unlikely to change that perception. That is one of the trial lawyer’s toughest challenges – to reach a juror (or judge) who starts out against his or her client and to get that juror to reconsider.

This study seems to say that hard-to-read typography will “disrupt” that bias and lessen its persistence, perhaps by making people “slow down.” This may affect the preparation of litigation graphics by trial graphics consultants by forcing them to consider whether a bias against their clients exists, and if so, making exhibits more, not less, difficult to read. This might mean that text call-outs from scanned documents should not be retyped and that persuasive titling should be in harder to read fonts.

We will begin testing these findings with our mock juries, and if they prove successful, testing them at trial as well. Anything to make jurors (metaphorically) stand up and listen (that is within ethical and legal boundaries) is fair game for trial graphics consultants. We will keep you posted.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Don’t Get Too Cute With Your Trial Graphics

by Ryan H. Flax, Managing Director, Litigation Consulting, A2L Consulting

You must use trial graphics and other demonstrative evidence to

be as persuasive as possible and win at trial. But, if you use trial graphics incorrectly, you risk losing everything. Take the recent trial scenario that played out in Orange County, California as an example and a warning.

In The People v. Otero, a criminal prosecution over a sexual assault on a child, in her closing arguments, the prosecutor began to discuss the burden of proof as we all know, in criminal cases it’s beyond a reasonable doubt. The question is, what does that really mean. The prosecutor wanted to make the point that the burden does not require absolute knowledge not every fact must be supplied and not every fact supplied need be perfectly accurate to satisfy this burden.

However, the prosecutor took it one step too far.

burden. However, the prosecutor took it one step too far. She used a trial graphic to

She used a trial graphic to demonstrate her point. It was similar to a combination of the graphics I’ve supplied above and below. Instead of showing an incomplete puzzle, it showed the state of California, without an identifying label and with some incorrect city locations and names. She began explaining that she wanted to identify the name of a state that looked like the one in the image (the trial was in California, by the way) and even though there was some incorrect or incomplete information, she knew the state was California. Well, the defense jumped right up and objected to that trial graphic.

defense jumped right up and objected to that trial graphic. The court sustained the objection and

The court sustained the objection and instructed the trial graphic be taken down and not referred to again. Then the judge instructed the jury to disregard the trial graphic and the discussion thereof. The trial and closing arguments continued and ultimately, the jury found the defendant guilty.

On appeal, the defense argued that the prosecutor’s little stunt with the map of California amounted to misconduct warranting reversal of the conviction. The Court of Appeal agreed that the trial graphic and argument was misconduct, but that it was harmless because it was taken down so quickly and because the strong evidence for conviction in the case.

The court explained the problem: the prosecutor was misstating the law relating to its burden of proof. The beyond a reasonable doubt burden is not quantitative – it’s not based on a certain number of puzzle pieces of evidence fitting together. So, it’s misconduct for the attorney to present it that way. It’s misconduct to tell the jury that if they have “X” number of puzzle pieces they should convict. So, although its always very tempting to make a graphic like this because the subject matter simply lends itself to visuals, you need to take a step back and decide just how to make this point visually and appropriately.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

I don’t know for sure, but I imagine that the prosecutor’s path to this misconduct went something like this:

“Hey, I’ve got a great idea!” And, if the law didn’t matter, she certainly did have a good idea. Make your case using trial graphics. Explain to the jurors that it’s okay to convict this guy even though you don’t feel 100% positive of his guilt (he admitted to the crime by the way). What this attorney was missing was someone by her side to say, “hold on a minute, you can’t do that” or “let’s rethink this before committing to this strategy.”

rethink this before committing to this strategy.” This is where a litigation consultant is invaluable. No

This is where a litigation consultant is invaluable. No matter how many trials you’ve been through as an attorney, we’ve seen more as consultants (we’re attorneys, too, by the way). Our specialty is how to get your “persuasion on” and how to do it the right way. A good litigation consultant is someone to bounce these ideas off of and work through the way to graphically make your case and how to stay inside the lines.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Beyond PowerPoint: Trial Presentations with Prezi and Keynote

by Ken Lopez, Founder and CEO, A2L Consulting

No trial presentation exhibit specialist can perform any better than his or her tools. Although the judge and jury aren’t usually aware of what software the trial consultant is using, the choice of presentation software is essential to the success of the consultant, and ultimately to the success of the case.

Over the last decade, presenting demonstrative evidence has usually meant using PowerPoint. In the hands of an expert trial consultant, PowerPoint is an extremely flexible tool. As we said earlier this year, for talented information designers, PowerPoint is a blank canvas that can be filled with works of presentation art. Among major law firms, PowerPoint still maintains nearly a 100 percent market share. After all, if something has been shown to work over and over again, there is every reason for a trial lawyer to continue using it rather than trying something new and unproven.

However, PowerPoint is beginning to face some competition. One source of competition is Apple’s Keynote program. Not surprisingly since it is an Apple product, Keynote is easier to use and generates presentations that are more attractive over all. Transitions feel more professional, animation effects are more design- oriented, and the designer will find it easier to create a slick looking presentation. In addition, presentations can be imported from PowerPoint and exported for use on the iPad.

The sample below, courtesy of keynoteuser.com, shows off some of the features of Keynote

sample below, courtesy o f keynoteuser.com , shows off some of the features of Keynote A2L

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Using & Creating Litigation Graphics to Persuade

As a reviewer has noted on CNET, “Keynote is a pro-level tool, probably the application most able to compete

with the 10-ton gorilla, Microsoft's PowerPoint

Microsoft PowerPoint. But Keynote has, from its first incarnation, done some things better than PowerPoint…”

[Keynote] faces an uphill battle against the entrenched

Another much newer and arguably much more exciting competitor is Prezi, which has been referred to on wired.com as “a digital poster online” and “kind of like a giant concept map.” This is the zooming presentation

Rather than rely on slides, Prezi creates a very large electronic canvas and permits viewers to zoom in on a particular element of the presentation, either interactively or scripted to behave like slides. With Prezi, you never have to wait for a slide that is 20 minutes away. Every element has a location in both time and space.

For the right subject matter, Prezi can potentially be very helpful to the trial consultant. For example, if the site plans of a manufacturing plant, or the structure of a coal mine are at issue, each element could be zoomed in on without distracting the jury. In fact, a Prezi presentation might appeal to the jurors’ basic concept of spatial orientation and help them understand something that would be hard to show with another software package. Unlike PowerPoint or other presentation mediums, it is easier to maintain context.

Below is a Prezi of a large timeline originally designed for display as two printed foam core trial boards measuring five feet wide each. This short Prezi trial presentation was built in just a few minutes and designed only to introduce the use of Prezi in the courtroom. The camera pans around the timeline in a scripted fashion and is advanced using the play button. It does not take too much imagination to see how this might be useful

to see how this might be useful in a trial presentation . While I d on’t

While I don’t see PowerPoint disappearing or even losing significant market share any time soon, competition is a good thing, and I am looking forward to a time when healthy competition will create software products that are even better adapted to litigation consultants’ needs than they are today.

Watch for an upcoming article that shows off more of the Prezi toolset.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Why Patent Trial Graphics Matter-And Not Just for Confused Jurors

by Ryan H. Flax, Managing Director, Litigation Consulting, A2L Consulting

Managing Director, Litigation Consulting, A2L Consulting One of the most controversial and followed topics of U.S

One of the most controversial and followed topics of U.S patent law in the last few years is that of patent eligibility. This subject has been litigated to the Supreme Court and to the U.S. Court of Appeals for the Federal Circuit over scientific subject matter spanning software to biotechnology, with mixed results.

The bottom line is that abstract ideas and natural phenomena are not patent eligible. Both simple steps performed by a computer and treating disease with a metabolite fabricated by understanding how the body converts chemicals into useful, therapeutic substances have been held to be not-patent-eligible.

Conducting a business transaction similar to business transactions that have occurred for decades, but doing so over a network may seem logically not patent eligible. However, discovering how a drug is converted to another chemical in the body and then therapeutically using this information to teat a patient seems to be just the opposite and a patent-worthy innovation. It’s certainly arguable that both technologies should be patent eligible, but it all depends on how they’re claimed.

The USPTO’s general counsel, Bernard Knight, recently addressed an audience at the Fordham (law school’s) Intellectual Property, Media & Entertainment Law Journal’s annual symposium and expressed his and the Patent Office’s frustration with the lack of guidance from the high court on this foundational legal issue. Mr. Knight reportedly explained, "We have 7,000 examiners that have to make patent eligibility decisions every day, and it's very difficult to do that when the only guidance from the Supreme Court is that software is not patent-eligible if it's an abstract idea." It seems that the USPTO is not really sure what the law is or how to correctly apply it.

So if the government agency responsible for granting patents finds patent law difficult to understand, how well do you think your jurors are going to get the concepts of infringement, the doctrine of equivalents, anticipation, and obviousness (and, yes, patent eligibility)? Not too clearly is my guess (actually, it’s more than a guess – I know they don’t really get it).

Hence, your job. Make jurors (or even the court itself) understand or think they understand the law and also see it your way. But, this is no easy task, which is lucky for you and I both since, if it were easy, clients wouldn’t need us.

There are good reasons that more than half of A2L Consulting's trial graphics and litigation consulting work is related to patent cases: patent typically involve complex and technical subject matter that must be explained to non-technical judges and jurors, the cases frequently make it to trial because settlements are often more difficult to craft in patent cases, and patent cases may often have hundreds of millions or even billions of dollars at stake (which is another reason they don’t settle).

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

A2L’s extensive experience in intellectual property litigation and patent trial graphics has proven that there is no more effective manner in which to present this type of information than through a visual format. The use of animation, in particular, in order to simplify issues and educate the modern day jury is akin to the Discovery Channel educating an entire generation of TV viewers.

Don’t let your jurors become frustrated (like the USPTO) with your case because they want to, but cannot understand it. Make your trial presentation, including the explanation of the facts and how the fit nicely into the law, as persuasive as it can be using all the tools at your disposal. You must use graphics to teach and persuade.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Top 5 Trial Timeline Tips

Litigation Graphics to Persuade Top 5 Trial Timeline Tips Although trial consultants prepare dozens of different

Although trial consultants prepare dozens of different types of exhibits that help judges and jurors understand a case, timelines are one of the oldest and most reliable. After all, most cases involve some sort of time sequence, and the order and timing of events can be crucial. Timelines give jurors an intuitive understanding of a case if they are done well.

While it seems simple to prepare a timeline, it is actually an art that requires practice and experience, just as any form of trial presentation would be. The following suggestions have worked well for our firm in over 10,000 cases since 1995:

Engage Your Audience: The timeline is meant for the jurors or the judge to understand. It’s a device that makes the case clearer to them. The timeline is not something that is intended to jog your memory. You should know your case perfectly or nearly perfectly without the timeline. In fact, in order to keep your audience engaged, you should feel free to add devices like photos, videos, charts, and the like. The more your timeline tells a story without explanation, the better it is.

It’s notabout the Bar: In general, the timeline should focus on the relative position of the events in the story that it tells, not on the date bar. If you are going to highlight a portion of the timeline, highlight the events themselves, and don't make the date bar the focal point. When was the device invented? When was it marketed? When did a competing device enter the market? Those can be key facts in a patent case, and they should be the focus of the timeline. If anything in the timeline should be highlighted with color or other design elements, it should be these events.

The Key Is Not the Key: Although a lot of people think a timeline needs a complicated legend or key, the truth is that it should be fairly self-explanatory. Rather than a legend, use logos, icons, company symbols, or other design elements to explain what the timeline represents.

Keep It Short: Jurors’ attention won’t remain on a timeline that is too long and complicated. Revise and redraft your timeline so that it focuses on the most important events, not on all events that are conceivably relevant.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Keep It Large: Don’t make the timeline too small. Otherwise, jurors will lose interest. We think the timeline should use no smaller than 20-point type.

If you follow these tips, we think you can create a very effective timeline. If you have additional tips or comments, please use the comments box below.

Here are several other A2L Consulting resources on timelines and litigation graphics:

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Antitrust Litigation Graphics: Monopoly Power and Price Fixing

Many antitrust cases involve potential damages of hundreds of millions or even billions of dollars. Cases can arise when one company sues another for violating the antitrust laws and causing economic harm to the plaintiff, or the government (U.S. Department of Justice, Federal Trade Commission, or state attorney general) can bring a case seeking money damages, an injunction, and other remedies. Price-fixing charges can even be brought as a criminal case by the Justice Department.

The antitrust laws prohibit both price-fixing by competitors and monopolization of a market by a single company, and both of those types of cases can be well illustrated by antitrust litigation graphics.

These cases involve complicated terms and issues such as market power, potential competition, and market definition that lawyers and economists have argued about for generations. But since they involve buying and selling, activities that jurors are familiar with, these concepts can actually be illustrated quite effectively by using analogies from daily life.

In a variety of cases, we have sometimes worked with lawyers who want to show that a company or a group of companies acted illegally to raise prices and hurt consumers in their pocketbooks, and we have sometimes worked with lawyers representing clients that are defending themselves against such accusations.

In the below movie, we portrayed a price-fixing conspiracy as a web, which is something that jurors understand well and is also a term that is used in the case literature to describe antitrust conspiracies. After the jurors have seen the web, they then see that it raised prices by a total of $740 million and caused harm to consumers.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In the next exhibit, we were attempting to show

In the next exhibit, we were attempting to show that Karma lager, a brand of beer, does not have market power in the beer market. What better way to do this than to show a shopper faced with dozens of choices in the beer aisle? Jurors see recognizable names there such as Miller, Heineken and Corona and come to the conclusion that a single player in the market would be unable to act so as to raise prices above competitive levels without losing customers.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In the final exhibit, we are illustrating the effects

In the final exhibit, we are illustrating the effects of an illegal “bundling scheme” perpetrated by a monopolist. Here, we analogize it to a late-night television commercial for a cleaning product. Not only does the graphic illustrate the economic principle of reasonable markups versus monopoly prices, but it also associates the defendant with TV hucksters, not a popular set of individuals in the mind of a juror.

“Call in the next 10 minutes and Receive the Patented Fancy Mop at NO Extra Charge!!!” is the type of pitch that many jurors will have heard and disdained. Here, we associate the monopolist in this case with that type of economic behavior

disdained. Here, we associate the monopolist in this case with that type of economic behavior A2L

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Using trial graphics in antitrust litigation is a must. The subjects of economics and mathematics are intimidating to most jurors and are a fundamental part of every antitrust case.

Many trial teams or antitrust experts/economists inadvertantly overwhelm a jury with one Excel bar chart after another. I believe this serves only to confuse the jury further -- since after you seen ten Excel bar charts, they all start to look pretty much the same.

Instead of focusing on bar charts, focus on the drama of the story. You want the jury to trust your client(s) -- or better yet -- distrust the opposition. Then, use stand-out litigation graphics that sharply contrast with your bar chart exhibits to highlight the key elements of your case.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic

By Ken Lopez, Founder and CEO, A2L Consulting

When most people think of courtroom presentations, they think of computer-aided graphics like PowerPoint presentations or movies or of written guides such as charts, graphs, and timelines. They don’t usually think of physical, scale-model creations.

In the appropriate cases, however, physical models or scale models can be extremely convincing to jurors, especially those jurors who are “kinesthetic learners” – those who learn best from three- dimensional objects. Every jury is likely to include one or even two of these people, and it is important to present information in ways that are suitable to their learning style.

We have built effective models in a variety of case types including patent infringement cases, Hurricane Katrina cases, and aviation cases.

As Dallas attorney James L. Mitchell wrote in 2003 [pdf] in a paper presented at a litigation and trial

can serve an explanatory,

illustrative function which is difficult to duplicate with any other medium. It is important to remember that

even when the model is present in the courtroom, it is still useful to present it with photographs (and/or slides) or with the use of the courtroom video visualizer. After the jurors look at the model and grasp the overall spatial relationships involved, they may get a clearer view of the specific areas at issue through a photograph rather than the model.

tactics seminar:

Scale models which are fabricated specifically for a case

than the model. tactics seminar: Scale models which are fabricated specifically for a case A2L Consulting

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

In a major patent case, we helped attorneys for Samsung Electronics Co. Ltd., show how electricity flows through computer memory by building a 15-gallon, clear plastic water tank. [View full article at right here on akingump.com - pdf] At issue were Samsung patents for reading the electrical charges in computer circuitry. Samsung’s expert contended on the stand that the way the Samsung circuit was built, electricity would discharge completely under the proper circumstances. The opposing expert from In Matsushita Electric Industrial Co. Ltd. disagreed. In a courtroom demonstration, the water in the tank did in fact

completely run out, into a tub on the floor.

to the patents that had been posed by Matsushita.

In a month-long trial, the jury ended up rejecting a challenge

In an aviation case, we built models of airplane instruments that were 4 feet by 4 feet in length in order to show how what happened when the knobs on the instruments were turned: The dials moved as well via a gear system that we designed and built.

moved as well via a gear system that we designed and built. In a patent case

In a patent case involving blood plasmids, we built a set of wooden rings that were intended to show the composition and relative sizes of various competing products on the market.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade Each of these examples nicely illustrates what is possible

Each of these examples nicely illustrates what is possible when good trial lawyers work with highly creative people to thoughtfully prepare for trial. As we say -- it is a winning model!

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Presentation Graphics: Why The President Is Better Than You

By Ken Lopez, Founder and CEO, A2L Consulting

Have you ever seen the President of the United States give a PowerPoint presentation? Probably not. But he's actually quite good at it, as you will see below.

For at least the past two years, President Obama's team has created PowerPoint-style presentation graphics that support his speeches and policies. The work they are doing is excellent and is relevant to trial attorneys and lobbyists alike.

and is relevant to trial attorneys and lobbyists alike. Below is a White House-created "enhanced" version

Below is a White House-created "enhanced" version of the 2012 State of the Union address. It was broadcast at the same time as the State of the Union address but only on the Web (an asset in wooing younger voters, who increasingly use only the Internet for news and media). It places the live feed of the president's speech next to a series of trial-like presentation slides.

speech next to a series of trial-like presentation slides. In many ways, a State of the

In many ways, a State of the Union address is similar to an opening or closing statement. Accordingly, for the trial attorney, there are many lessons to take from this speech/presentation combination. These include:

Watch how the President uses emotion-evoking photographs to tell a story. In a mock trial setting, photographs are normally received very well by the jurors, but many litigators erroneously leave them out of their opening statements.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Look at the obvious high quality style of the President's presentation. The fonts used are not standard Arial or Times New Roman; colors are well chosen; and the presentation seems worthy of the office of president. Such style in presentation is not reserved for the Commander-in-Chief but is available to anyone who wants it.

Notice that each slide is simple enough to understand in a moment or two. A common trial mistake is to try to put too much into a single slide. I urge you to adhere to the philosophy that one slide = one sentence of meaning (with no conjunctions).

Notice also that the President is using an immersive (i.e. continuous) graphical presentation. A recent study showed this to be the most effective form of presentation (particularly for persuasion), and I encourage you to adopt this technique.

Note that the President used roughly 91 slides for a 65-minute speech or about one slide every 42 seconds. That's consistent with the latest research, but part of the reason the President's presentation was so successful is that he did not need to specifically speak to any of the slides. The graphics spoke for themselves, which is how such graphics should be designed.

Finally, there are no bullet points! Good graphics don't have them.

The 2011 enhanced State of the Union slides below are similar to those from 2012 above. However, the differences between the slide decks are interesting. The 2012 speech slides are more refined in style. There are fewer photos, and there were 23 more slides used in about the same time.

same time. 2011 Enhanced State of the Union Address Graphics View more documents from White House

View more documents from White House

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

The White House has continued its push for information graphics beyond the State of the Union as well. Perhaps more so than the State of the Union, the White House's use of widely distributed information graphics (or infographics) for issue advocacy points the way for lobbying efforts generally. The administration often uses captivating postcard-style information graphics that speak to a single issue. These are often widely distributed on social networks.

The Obama-Biden campaign's most successful use of an infographic was the one that recently made the rounds about job growth. Here it is:

that recently made the rounds about job growth. Here it is: This image above has been

This image above has been shared millions of times on Facebook and Twitter. It is similar to a timeline that A2L might use in a trial format, and it is similar to the work we do in issue advocacy outside the courtroom. It has been well designed to be shared easily, and I have seen it countless times on my friends’ Facebook pages.

The presentation graphic below was released just this week. It does a fine job of responding to criticisms of the administration's spending. However, if a presidential contest were litigation, this chart would not likely survive an objection. See if you can spot the issue.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade The 1.4 percent figure is absolutely correct - but

The 1.4 percent figure is absolutely correct - but only if you use 2009 as the year to compare with 2010,

2011 and 2012. It's a smart technique to use when advocating. In fact, spending in 2009 rose by about

(.PDF) is below.

Total Federal Outlays in Trillions of Dollars

2007 - 2.729

2008 - 2.983

2009 - 3.518

2010 - 3.456

2011 - 3.598

I have friends in all parts of the political spectrum, but I have yet to see a Romney campaign infographic on Facebook. As the campaign goes on, this may, of course, change. Perhaps the Romney campaign should consider using an infographic similar to that below. This graphic effectively hits back at the Obama-Biden jobs infographic while calling into question the credibility of future campaign promises.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade Sharable infographics are the new sound bites. Advocates distribute

Sharable infographics are the new sound bites. Advocates distribute them to their followers who then share the graphic with millions of people within a few days. Followers use these tools in online conversations similar to the way one might say flip-flopper, draft-dodger, war hero, patriot, or socialist in face-to-face conversations. They are a form of shorthand that can be quickly digested.

As is often the case in the courtroom or in issue advocacy, the best presentation graphics distributed in the most effective ways will likely help one side prevail in this presidential contest.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

By Ryan Flax, Managing Director, Litigation Consulting, A2L Consulting

In a previous article I told you about five surprises I found in moving from my previous position as an IP litigator to my current position as a litigation consultant. After a few more weeks on the job and a bit more day-to-day experience as Managing Director, Litigation Consulting for A2L, I find that there is another big surprise: the amount of thought, time and work that goes into each and every trial graphic.

As an attorney, and particularly one well versed in technology generally and litigation technology specifically, even I had no idea what really went into the development of top notch trial graphics. Like other litigators, I had plenty of experience in making presentations and creating PowerPoint slides to help make my points. But, I’ve discovered that there is a huge difference between what an attorney can create at his desk at a law firm and what can be built by a team of litigation consultants and trial graphics artists working with that attorney.

and trial graphics artists working with that attorney. Compare this PowerPoint trial graphic (above) produced by

Compare this PowerPoint trial graphic (above) produced by our litigation consulting team at A2L with another trial graphic (below) that I’m sure you’ll agree is similar to what you’d produce at your desk at a law firm (this subject matter is near to my heart as a patent attorney).

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade The law firm example slide is clear and straightforward

The law firm example slide is clear and straightforward and conveys all the information you need that to infringe a patent claim literally (not considering the doctrine of equivalents), every limitation of that claim must be in the accused product (or process). This slide could easily be used in any presentation, for example, in a client pitch meeting or in an explanatory presentation by an associate to a partner.

Now compare it with the litigation consultant-created trial graphics example at the top. The litigation consultants' work conveys all the same information provided in the basic text-based slide (i.e., if the accused product is missing even one element of the claim, there’s no literal infringement), but it provides it as a visually “catchy” analogy for the jurors -- one they’ll never forget). It is persuasive, not just informative. And it does all this without adding complexity. These additional aspects of the consultants' slide are what makes it a key to winning at trial.

It may surprise you to learn that it’s not so easy to take these additional steps in developing a persuasive presentation. To make this “magic” happen, a team of litigation consultants (preferably made up of attorneys, as is our team at A2L) and experienced trial graphics artists devise the best way to present key evidence or themes graphically and textually to make points with a jury. Visual input, such as that presented in the bowling slide above, tends to have impact and stick with jurors and helps them make difficult decisions on contentious points, even when they might otherwise tune out pure verbal/textual argument.

This extra step constitutes some of the value added by a litigation consulting firm. The very trial graphics slide you see above (the bowling one, of course) contributed to a major recent win in a patent infringement case for an A2L Consulting client in Power Integrations, Inc. v. Fairchild Semiconductors International, Inc., et al., C.A. No. 08-309-LPS (as reported here).

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Patent Comes Alive! Turning Patent Drawings into Trial Presentations

One of the unusual techniques that we are using in patent litigation trial presentations is something we call Patent Comes Alive. This process begins with patent drawings and goes well beyond them.

Patent drawings themselves are a unique and highly specialized form of art. Their purpose, of course, is to illustrate the item to be patented and to show exactly what it is and what the patent applicant is claiming about the invention. For nearly all patents, the Patent and Trademark Office requires the applicant to furnish drawings.

That is not all: The Office also requires the drawings to be in a particular form.

Well-known patent blogger Gene Quinn has written that the Patent Office “specifies the size of the sheet on which the drawing is made, the type of paper, the margins, and many other hyper-technical details relating to the making of the drawings. The reason for specifying the standards in detail is that the drawings are printed and published in a uniform style when the patent issues, and the drawings must also be such that they can be readily understood by persons using the patent descriptions.”

But these very characteristics that make a patent drawing precise and capable of being relied on in court can also make the drawing lifeless and impenetrable. Our technique, “Patent Comes Alive,” takes an existing patent drawing and animates it, making it understandable to a jury.

In a case involving patent infringement of a paper/CD shredder, for example, we brought the patent drawing to life by animating it in a PowerPoint presentation. The animation made it easy for the jury to see not only how the shredder worked but how a competing product infringed upon the patent.

see not only how the shredder worked but how a competing product infringed upon the patent.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

In another patent case, we started with a patent drawing of a vending machine patent. We looked inside the machine with animation, showing how it dispenses products.

machine with animation, showing how it dispenses products. In yet another patent litigation, we got a

In yet another patent litigation, we got a favorable outcome for a client in a major case involving coke drum de-header valves after we took a patent drawing and brought it to life.

involving coke drum de-header valves after we took a patent drawing and brought it to life.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

This type of animation is yet another instance in which a skilled trial presentation consultant can illustrate

a highly technical subject and make it easy for a lay juror to understand.

A patent drawing can be daunting and complex to someone who is not an engineer yet basic tools such

as PowerPoint, in the hands of the right courtroom consultant, can make the drawing a relevant and memorable part of a trial presentation.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Automobile Litigation: Patent Infringement and Product Liability

As one can imagine, automobiles are the subject of a good deal of complex litigation these days -- whether the case has to do with the validity of a patent for use in the manufacture of an automobile, the possible liability of an auto manufacturer for an accident, a class action claiming a design defect in a certain model of car, or another legal issue.

Automobiles present interesting challenges for the trial graphics consultant. On the one hand, nearly everyone has driven a car, and many people think of themselves as fairly knowledgeable in auto mechanics (while they would not fancy themselves as computer or jet-engine experts, for example). On the other hand, today’s vehicles are incredibly complicated items with sophisticated computer systems and electronics.

In 2010, for example, IBM wrote in a press release that due to the “exponential growth in the automotive electronics industry, owning a modern vehicle is equivalent to operating thirty or more computers on wheels,” and that “the average automobile now has several millions of lines of code -- more than a space shuttle.”

So jurors do need considerable education about a seemingly basic item like a car.

Since 1995, many of our cases have involved patent disputes about items such as brake parts, valve stems, engines, wheel parts, window glass, and many other parts of the automobile.

In fact, patent litigation in the automotive industry is as old as the industry itself. A recent article in the Legal Intelligencer noted that “patent litigation in the auto industry dates back to the first days of cars” and discussed patent attorney George Selden, who sued all the early auto makers, including Henry Ford, for infringing on his patent, which was granted in 1895.

Patent litigation and automobile product liability litigation is very much alive in the industry. The exhibit below shows the evolution of seatbelts from their introduction as mandatory features in 1964 to the introduction of emergency locking retractors (ELRs) in the 1970s and 1980s. It was used in a major product liability case.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In a case involving litigation over an automotive patent

In a case involving litigation over an automotive patent for a valve stem transmission device, we showed in a brief motion picture (just over one minute) how the device works, using a sensor.

(just over one minute) how the device works, using a sensor. In another patent case, we

In another patent case, we showed how two sensors work in tandem to activate air bags and how they respond to frontal, side, and oblique collisions.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In this Flash interactive exhibit, our information designers created

In this Flash interactive exhibit, our information designers created a simple interface that allowed trial counsel in yet another patent infringement matter to illustrate how an engine and engine braking system works.

to illustrate how an engine and engine braking system works. This type of litigation, as old

This type of litigation, as old as the automobile itself, is a mainstay of our work.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trial Presentation Too Slick? Here's Why You Can Stop Worrying

In our 16 years in the trial presentation business, and after consulting on more than 10,000 cases, we still hear litigators concerned that their trial presentation/litigation graphics might somehow look “too slick” and will distract the jurors, or will somehow focus attention on the relative wealth of our client who is able to afford “fancy graphics.”

In the early 1990s, this was a valid question. No one had used PowerPoint, no one had a cell phone let alone a smart phone -- few people had personal computers, and most of those had black screens with green text.

That is no longer the case. Technology has penetrated into every part of the United States and indeed into most of the world. A 2011 report from the Pew Research Center’s Internet and American Life Project indicates that 85 percent of U.S. adults own a cellphone, 52 percent own a laptop computer, four percent own a tablet, and only nine percent do not own any of these or other devices covered in the study. Those numbers will only increase.

According to Robert Gaskins, the creator of PowerPoint, more than 500 million people worldwide use PowerPoint, with over 30 million PowerPoint presentations being made every day.

Trial consultant Robb Helt, at the end of a trial in rural Arkansas, was able to talk with the jurors about the use of trial presentation technology/trial techncians in their just-completed trial. Helt found that the theory that jurors are uncomfortable with technology had been “blown away” by this “down home” jury. These jurors were not only comfortable with trial presentation technology they expected to see it.

“Today is technology. That’s what it’s all about,” one juror said.

Hear what else these rural jurors had to say below:

what it’s all about,” one juror said. Hear what else these rural jurors had to say

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

In their “Litigation Services Handbook: The Role of the Financial Expert,” authors Roman L. Weil, Michael J. Wagner, and Peter B. Frank write:

“Some lawyers and witnesses worry about appearing too slick. They worry that nicely designed and colorful

exhibits or the use of high technology will reinforce the image that the party they represent has substantial resources and thus does not need to be awarded damages or would have little difficulty in paying them. Post-

trial interviews we have conducted demonstrate that this is a needless

communication for example, on TV or on their own computers that is superior to anything they see in the courtroom.”

Jurors often see visual

Jurors expect trial presentation technology now. The fear of looking “too slick” is dead, and it is time to put it away for good.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Power Plant Legal Animation and Effective Information Design

In the 1990's the DOJ/EPA initiated litigation against a large number of coal-fired power plants based on the New Source Review (NSR) process under the Clean Air Act. Among other things, the NSR process requires operators of coal-fired power plants to seek EPA review and approval to make modifications to their plant that would increase emissions. Exceptions exist for routine maintenance at the plant and any emission increase must also be significant. Unfortunately, Congress neglected to define routine and significant.

Animators at Law has been called upon to create legal animations and other information design focused trial graphics in a number of these cases. These cases typically have billions of dollars at stake, and the more EPA-friendly the current presidential administration, the more cases get filed.

In this two-part post, I want to share portions of a 13-minute animation created for use in opening in one of these NSR bench trials. We worked on behalf of the power plant operator in this matter, and we faced a Government trial team who came armed with their own legal animation.

Throughout the history of NSR cases, the Government has taken the position that any big change at the plant requires EPA approval. This includes large parts that are changed routinely. It turns out, however, that most parts in a plant this size are large, and the government argues that by maintaining the plant, one is extending its operating life thus increasing emissions.

The Government opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks. Our challenge was to make the point that while large parts were changed, they are relatively small in the context of such a large facility.

We knew two things that were helpful in this bench trial. First, the government was comparing our parts to semi-trucks. Second, the judge was known to visit the old Busch Stadium where the St. Louis Cardinals played and where semi-trucks were often parked outside.

played and where semi-trucks were often parked outside. The message delivered by the clip in opening

The message delivered by the clip in opening was: yes, we changed big parts, but everything at our plant is big, thus we must ask, big compared to what? Is a semi-truck really that big compared to not one Busch Stadium but twenty? I think this legal animation reflects a good use of information design to convey scale when billions of dollars where at stake.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Power Plant Legal Animations and Effective Information Design (pt. 2)

I will begin by reiterating key elements of the first post in this this two part series.

More than 20 years ago, the Justice Department began filing lawsuits against a large number of coal fired power plants based on a Clean Air Act provision called New Source Review (NSR). The NSR process calls on power plant operators to seek EPA review and approval before making modifications to their power plant that would significantly increase emissions. An exception exists routine maintenance. Since Congress neglected to define routine and significant, litigation has followed over these definitions.

Animators at Law has worked on many of these cases and created trial graphics and legal animations. I want to share portions of a 13-minute animation used in the opening of an NSR bench trial in 2003. We worked on behalf of the power plant owner in this matter. We faced multiple challenges such as:

1. conveying the scale of the plant;

2. explaining the plant's operation;

3. showing how the projects in question were not large;

4. showing how these projects were in fact routine maintenance;

5. showing how none of the projects increased emissions.

After the Justice Department opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks, we had to make the point that while large parts were changed, they are relatively small in the context of such a large facility. With billions of dollars at stake, Animators at Law prepared a large number of trial boards and legal animations for the case.

In part one of this post, I shared how Animators at Law compared the size of the facility to Busch Stadium using legal animations. Below is an example of how we combined technical illustration with a legal animation overlay to provide an overview of the plant, to explain how the plant worked and to again emphasize scale

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Below is a trial exhibit used in an NSR trial that effectively compared the routine maintenance of the bridge to the routine maintenance at a coal fired power plant. We think it was a very effective analogy and a leading environmental publication agreed and remarked on its use.

effective analogy and a leading environmental publication agreed and remarked on its use. A2L Consulting |

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Below is another legal animation showing some highly skilled 3-D modeling and animation used in another New Source Review Case. The 3-D model was used in other legal animations and graphics to explain the unique geography of the plant.

was used in other legal animations and graphics to explain the unique geography of the plant.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Learn About Nuclear Power Plants Through Litigation Graphics

The world is watching in shock as a nuclear drama unfolds in northeastern Japan. In only a few days, most of us have somehow come to accept that there are degrees of a nuclear meltdown and that explosions at a nuclear power plant may not always point to a cataclysmic outcome. A week ago, those beliefs would have been unthinkable. Then, nuclear power was a binary condition: it was either safe, clean and efficient, or it was Chernobyl, with no in between.

Even in the safest of times, generating power through nuclear energy presents major challenges. One of the key challenges is handling the inevitable nuclear waste, primarily spent nuclear fuel. After conducting extensive studies in the late 1970s and early 1980s, the U.S. Government thought it had found an answer. In 1983, the U.S. Government contracted with operators of nuclear power plants to begin picking up nuclear waste starting in 1998 and storing it in a central facility.

The U.S. Government had then agreed to become the primary shipping and storage mechanism for the nuclear power industry. The plan was to store nuclear waste at the now defunct Yucca Mountain storage facility located about 100 miles from Las Vegas. Ultimately, fears of geologic instability at the site combined with election-year politics doomed the project. So, instead of one underground facility located on the site where 904 atomic bomb tests have already been conducted, America is left with more than 100 storage sites around the country where nuclear waste is stored in pools or barrels.

When the U.S. Government breached their agreement to pick up the nuclear waste, operators of nuclear power plants sued. In this line of cases, the question is not whether a breach has occurred, but rather how much it will cost the facility to store the waste if that is even possible. Animators at Law has been involved in quite a number of these spent fuel cases typically heard in the U.S. Court of Federal Claims. Below are some litigation graphics from these cases.

The animation below shows the removal of a reactor pressure vessel. When a plant must be closed due to age or due to an inability to store more waste, the reactor pressure vessel may be removed. The boiling water reactors at Japan's Fukushima nuclear power plant use a similar reactor pressure vessel. Originally created in PowerPoint using dozens of technical illustrations played in succession, this litigation animation shows two methods of removing the reactor pressure vessel that contains the plant's nuclear core.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade The trial exhibits below are shown as a screen

The trial exhibits below are shown as a screen capture of some PowerPoint litigation graphics. These trial exhibits analogize the problem an automobile service station would have if its used oil collection stopped to the spent nuclear fuel storage problem faced by nuclear power plant operators. Further, it helps make the case that costs do not stop with storage (as the U.S. Government contends) but also include indirect and overhead costs related to storage (e.g. security, accounting and management).

to storage (e.g. security, accounting and management). Animators at Law has helped its clients recover hundreds

Animators at Law has helped its clients recover hundreds of millions of dollars in spent nuclear fuel litigation cases, and effective litigation graphics have been key to this success.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

The Redundancy Effect, PowerPoint and Legal Graphics

By Kenneth J. Lopez, J.D., Founder & CEO, A2L Consulting

After the introduction of PowerPoint 2003, PowerPoint became the dominant trial presentation tool used by litigators. It has largely replaced printed large format trial exhibit boards in most high stakes cases. However, PowerPoint also introduced a problem that deserves our attention.

Instead of graphic designers creating well-designed printed trial boards, litigators and their support staff could now create exhibits on their own. Some did create great presentations, however the vast majority of trial and corporate presentations came to be dominated by the dreaded bullet point and text-heavy slides. Comedian Don McMillan covers this and other PowerPoint-related topic best:

covers this and other PowerPoint-related topic best: What is problematic about the bullet point and text-heavy

What is problematic about the bullet point and text-heavy slides in PowerPoint trial presentations is not what you might first think. Yes, bullet points almost surely lead to boredom. Sure, they are not a particularly effective technique for emphasizing key messages. Worse, as Don McMillan notes, it can be excruciating when someone reads their bullet points and text. However, worst of all is something called the redundancy effect. This scientifically validated concept is the true enemy of the effective litigator deploying legal graphics.

In a nutshell, the redundancy effect describes the human mind's inability to process information effectively when it is received both orally and visually simultaneously. The best known study describing this effect showed text on screen while a narrator spoke those same words. Comparison audiences saw or heard the information separately. The study revealed that people retain less information when they receive it visually and orally at the same time.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Legal graphics PowerPoint redundancy effect

The message for litigators should be clear. Never read the text on trial exhibits you are displaying for your audience. Instead:

Talk about trial exhibits and legal graphics diagrams.

Pause your oral presentation and ask your fact-finders to read key text silently.

Dim the screen (just press the B key) and read key text yourself or have an expert read the text.

Focus on presenting diagrams instead of text.

Speak words and don't show them.

instead of text.  Speak words and don't show them. Overcoming the redundancy effect may be

Overcoming the redundancy effect may be the easiest change a litigator can make to enhance his or her trial presentation. The rewards are a greater chance of your fact-finder retaining information and a corresponding increase in your odds of winning.

More information on the redundancy effect can be found here.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Semiconductor Patent Litigation Graphics (What is a MOSFET?)

At Animators at Law, roughly 60% of our work involves patent litigation graphics. These patent cases run the gambit from light bulbs to software to semiconductors to drug eluting stents. Since a jury is often called upon to decide the key issues in the litigation they must understand the underlying technology.

There is no substitute for well-crafted graphics in a patent jury trial involving technology. Our firm has been creating litigation graphics in intellectual property litigation since 1995 often utilizing our former patent litigators has graphics consultants. While our delivery medium is often PowerPoint, the underlying graphics or animation are usually created in a more sophisticated illustration software tool.

We routinely use visual analogies as a teaching and persuasion technique. Specifically, we use analogies that relate complex subject matter to something familiar or easily grasped by the fact-finder. We have used stadiums to relate scale in a bench trial where the federal judge was a season ticket holder, the Statue of Liberty to convey the severity of the turbulence and an out of business service station to explain expenses involving the storage of nuclear waste.

In the patent litigation graphic below, our challenge was to explain a protection MOSFET or metaloxidesemiconductor field-effect transistor. In non-technical jargon, a MOSFET is a switch used to control the flow of electronic signals. We ultimately needed the jury to achieve a much deeper understanding than this definition, however, and this meant starting with a basic understanding of how a MOSFET works.

In the movie, you can see that we have used PowerPoint animation and a plumbing analogy to lay the foundation for an understanding of a MOSFET, transistors and semiconductors. After all, like a valve attached to your sink, a MOSFET is simply used to control flow.

After all, like a valve attached to your sink, a MOSFET is simply used to control

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Patent Infringement Trial Graphics:

Illustration + PowerPoint

Still think PowerPoint is a trial presentation tool primarily for bullet points and text? Allow me to show you otherwise!

Like a good salad, PowerPoint is all about the ingredients you put into it. Bad ingredients (e.g. text only, bullet points, clip art, poor color choice, etc.) equal bad PowerPoint trial graphics. Good ingredients (e.g. technical illustration, well-designed backgrounds, quality transitions between slides, animation, etc.) equal winning trial graphics.

Since the introduction of the 2003 version, PowerPoint has been a go-to tool for patent litigators in claim construction hearings, tutorials, at the ITC and in patent infringement trials. Out of the box, PowerPoint is simply a blank canvas that allows text, clip art and basic shapes to be combined on a slide. However, in the hands of an information designer at a trial consulting firm, it is a powerful tool indeed. Like a master painter with high quality paints, skill and experience, the blank canvas of PowerPoint can be filled with true works of information art in the hands of a skilled information designer.

The movie below contains four examples of patent infringement trial graphics created by Animators at Law. Three of the four examples were created for jury trials or Markman hearings. One example was built for a §337 ITC hearing. All examples combine technical illustration and PowerPoint animation in a clever way. The examples are:

A patent litigation PowerPoint animation showing how an MRI image is captured locally and stored remotely.

An animated patent infringement graphic showing video streaming server technology

Trial graphics showing the patented process by which adipose derived stem cells are created.

Trial exhibits for an ITC hearing showing how a ground fault circuit interrupter works.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade Although presented in video format here, each of these

Although presented in video format here, each of these trial presentations was played directly in PowerPoint. I believe that each of these trial exhibit examples represents the state of the art in patent litigation trial graphics. By using trial exhibits like these in your next patent infringement trial or Section 337 ITC hearing, a patent litigator will be a more effective communicator, will win more cases and will do so on a shorter/more efficient trial schedule.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trial Exhibits: Using the Document Call-Out to Persuade

Whether a $5 million trial or litigation involving hundreds of billions of dollars, Animators at Law almost always uses document call-out trial exhibits as part of its trial presentation. They are a time-tested and effective tool for highlight key portions of a document in evidence. Sometimes these call-outs are done on-the-fly in Trial Director by our on-site trial technicians and sometimes these are created using PowerPoint.

Regardless of the tool used, care should be taken to consider the most persuasive design for the point a litigator is trying to make. All too often, stock designs that simply highlight black text in electronic yellow highlighter or faux torn paper tear-outs are used to emphasize key text. Sometimes these approaches are adequate. Other times, you are missing out on a key opportunity to persuade.

Animators at Law was hired by The U.S. Department of Justice to produce a group of trial exhibits to defend against injury claims in a rescue helicopter landing. One key case theme required us to emphasize that it was the duty of the hospital to stop traffic rather than anyone on the helicopter or at air traffic control. To make this point, we arranged the key call-out language inside a stop sign shape. When combined with emphasis by the litigator, I believe the message of "STOP" was unforgettable.

with emphasis by the litigator, I believe the message of "STOP" was unforgettable. A2L Consulting |

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trial Exhibits: Antitrust, Pharmaceuticals & Hatch-Waxman Litigation

The passage of the Drug Price Competition and Patent Term Restoration Act in 1984 and its subsequent amendments (collectively the Hatch-Waxman Act) gave rise to more competition in the pharmaceutical industry and a new era of litigation. The act itself provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug.

The application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA). Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA. Simply, if the ANDA approval is delayed, the brand name firm continues to enjoy the lawful ability to sell their brand name drug without a lower priced generic equivalent in the market. One lawful mechanism brand name manufacturers use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA.

The Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent and thus should not be approved for sale. Should the Citizen Petition be deemed only a mechanism for delaying approval of the ANDA/generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations.

Such was the question our firm faced when working on behalf of a brand name pharmaceutical firm recently. A Citizen Petition had been filed and a jury was going to be asked whether it had been lawfully filed. Were the jury to find that the Citizen Petition had been unlawfully filed with the intent to simply delay approval of the generic drug, they could possibly award hundreds of millions of dollars in damages. One quirk in this case that proved advantageous was the fact that it was not the generic drug firm suing the brand name firm, but instead it was the middleman or drug wholesaler who was alleging antitrust violations.

Our challenge in creating an effective trial presentation was to create trial exhibits that both taught the jury and persuaded the jury simultaneously. The trial exhibits shown below were part of an opening PowerPoint presentation that explained who was involved in the case (i.e. the typical parties/players trial exhibit) and who was not involved. We sought to emphasize that the brand name firm was being sued not by the generic drug manufacturer but instead the wholesaler who we painted as the delivery guys in these opening trial exhibits. The story told is this:

Brand name firms seek approval for a new drug from the FDA;

Brand name firms distribute their product through wholesalers who then sell them to pharmacies;

Generic firms receive approval to sell through an ANDA;

The brand name firm here is BrandName Pharma, generics will be mentioned and then there are the wholesalers. In this case HatchWax Wholesale Drug;

One would think the generics are involved, but they are not. Only the wholesalers or the delivery guys are suing. What business do they have suing?

Who is HatchWax Wholesale Drug? They are professional antitrust plaintiffs.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

These trial exhibits shown in video format were part of a PowerPoint created for opening statements. Scroll below the movie for the impressive result.

Scroll below the movie for the impressive result. Despite a serious threat with potential damages approaching

Despite a serious threat with potential damages approaching half a billion dollars, our top five law firm client prevailed with the assistance of our trial exhibits. We received a complete defense verdict and our client noted about Animators at Law:

"The whole team was incredibly thoughtful, creative and always willing to answer the call. We would not hesitate to recommend you to any of our colleagues, we had a far better experience with you than with others we have used in the past (who didn't quite "get" what we were trying to convey and were always three steps behind us - you guys were consistently one step ahead)."

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Memorable Markman Exhibits and Patent Litigation Trial Graphics

A picture is worth a thousand words, and when it comes to effective storytelling, no statement more aptly

applies. One of the biggest challenges attorneys have when telling their story is conveying to their audience the complex ideas and legal concepts in their case in a manner in which the information will be

understood. Leading up to trial, an attorney is frequently faced with this question: how do I get my audience to understand information imperative to my case and how do I make it memorable?

One of the key roles an attorney takes on when faced with a legal proceeding is that of a teacher. One

must teach the fact-finders the facts and the laws that apply to the case and why the stated interpretation

of the facts and the laws is the correct one. That is where trial graphics and other trial presentation

techniques come in taking complex case themes and legal concepts and turning them into simplified visual models that are more easily understood and digestible to the average fact finder.

With this requirement of effective communication of case facts being ever present, graphics and animations have become vital tools in the modern litigator’s arsenal. I dare say there are few attorneys these days that go to court without some type of demonstrative evidence or technology; whether it is graphics or documents loaded into a trial presentation database.

Many areas of law lend themselves particularly well to the use of graphics. For example, patent litigation virtually requires the inclusion of memorable trial graphics. The technology in a patent can be (and often is) very complex. For the non-expert the content is difficult to understand and even more challenging to explain to the average person who may not have a scientific or technical background. Sometimes the ability to show a process or a function of a patent - how something works -- as opposed to trying to explain it with words and documents makes the difference between winning and losing. Such was the case recently where our firm helped a trial team obtain the 6th largest patent verdict in history.

Illustrative of such visual presentation ideas, I have included a sample PowerPoint Markman claim construction hearing trial graphic below that portrays a creative use of animation in PowerPoint. This case involved a patent infringement claim where the plaintiff claimed the defendants were infringing their patent for automated systems for selecting and delivering packages to fill prescription drug orders.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade The intent of this demonstrative was to reproduce the

The intent of this demonstrative was to reproduce the function of the machine at issue in PowerPoint in order to visually show how the machine worked as opposed to using documents and the patent to explain how the machine works.

At Animators at Law, we provide demonstratives that are communicative and educational while also being stimulating enough to keep the jury engaged. We do this by creating trial graphics that clearly explain the concepts a trial team is conveying to the jury so that they will understand the facts and legal arguments of the case through the use of memorable demonstratives that resonate with the jury or fact finder.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trial Consulting: Using Trial Exhibits in Reinsurance Litigation

Courtroom animation is often indispensable for the purpose of showing jurors how technical processes work, how scientific principles come into play in a case, or how a legal concept applies in practice.

In addition, by applying trial consulting principles, litigation animation can also be used to keep a jury engaged and interested. Too often, when a case involves complicated technical issues, the jurors’ attention will wander, and even an excellent set of witnesses or a brilliant closing argument will not win the case, because the jurors just haven’t been focusing all along.

Ray Moses of the South Texas College of Law made this point well in a comprehensive online guide to prospective criminal defense attorneys.

Modern day jurors - most of 'em are either geeks or baby boomers - receive and process information through increasingly sophisticated visual media. Every trial lawyer, particularly defenders, must learn how to use technology to engage the jury. The persuasive force and eloquent power derived from using visual and aural displays of information in electronic form, e.g., computer-generated exhibits, at trial simply cannot be ignored,” Moses wrote for the Center for Criminal Justice Advocacy.

An excellent example is the highly complex legal concept of reinsurance. Not every lawyer knows what reinsurance is, and certainly most lay persons on juries have no idea. (It is insurance purchased by an insurance company from another insurance company as a means of transferring risk from the first company to the second company.) A juror, hearing the term “reinsurance” being bandied about at the trial, can easily conclude that this is something he or she can’t understand or make a judgment about and can thus close himself out to a lawyer’s arguments.

Clearly, trial lawyers need a way to keep jurors engaged and involved when complicated financial transactions involving reinsurance are at issue in the courtroom. These cases can be worth hundreds of millions or even billions of dollars to the client.

At Animators at Law, we developed a PowerPoint for a trial that helped make a specific reinsurance transaction easier to understand and that was intended to engage a jury’s interest.

In this case, we wanted to show that “Washto,” a reinsurance company, had created a subsidiary into which it had placed many of its bad investments. It then transferred those bad investments to “Greek Re,” which had acquired Washto, thus saddling Greek Re with the bad investments.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In the animation, we simply showed Washto dumping sacks

In the animation, we simply showed Washto dumping sacks of money into a box that represents the subsidiary. Then a truck hauls off the money to the Greek Re side.

While a juror, upon seeing this brief video, would not gain an immediate and full understanding of the concept of reinsurance, his or her interest would be piqued by this animation. Obviously, something involving money was being taken out in sacks by one company and dumped on another company.

Most cases require the use of courtroom visuals in some form. The more complex or dry the material, the more trial consulting services and graphics will increase the chances that a jury will grasp the facts and law.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Trademark Litigation Graphics: Making Your Best Visual Case

Trademark Litigation Graphics: Making Your Best Visual Case Trademark cases are one type of case that

Trademark cases are one type of case that lends itself well to the use of graphics. That may seem obvious since in most such cases, the object under dispute is a trademark something that is itself often an item of graphic design, or at the very least a word or phrase that is easy to visualize. So one would expect that courtroom visuals would help jurors a great deal in trademark cases.

This analysis is true to some extent, in that the litigation team will wish to introduce the trademarks into evidence so that the jury can look at them and often see some obvious similarities or differences from other marks.

However, that is not usually where the analysis ends. Trademark law can be surprisingly complex and doesn’t always follow common-sense rules. Trademark trials can turn on esoteric concepts like reverse confusion, a mark that is found to be “deceptively misdescriptive,” and similar ideas.

David C. Hilliard, a name partner at Pattishall McAuliffe, Newbury, Hilliard & Geraldson, a top Chicago- based intellectual property law firm, has written that for a trial in which BASF was defending its right to use the trademark “Galaxy” for its herbicide [link is PDF], he had planned to use an effective courtroom graphic. He wrote, “For the BASF trial, we had prepared a display board that showed there were 220 Galaxy companies in existence in the midwestern United States. It was strong support for our argument that one more wouldn't infringe plaintiff's rights any more than the other 220 did.” As it happened, the graphic was not introduced into evidence, but Hilliard would certainly have introduced it under other circumstances.

In the same article, Hilliard noted that in a case involving infringement of a potato chip packaging trademark, “In Frito Lay v. Bachman, we used a visual display which featured admissions during discovery by Bachman's president of intentional trademark infringement.

Q: Were you concerned that [your] package would be confused by the public with the more popular RUFFLES package?

A: Some would confuse it with one that looks like it, yes.”

Similarly, at A2L Consulting, we used the graphic below to show that under any circumstance, the existence of a cheap knock-off brand would not cause post-sale confusion and would thus not have a significant market effect on a high-end company.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In the graphic below, we illustrated the principle that

In the graphic below, we illustrated the principle that the customers of dining establishments, bars, and hotels overlap and that the infringement of a trademark for one of those types of businesses could lead to unfair competition with a trademark for another of these types of businesses, thus causing consumer confusion in the marketplace.

for another of these types of businesses, thus causing consumer confusion in the marketplace. A2L Consulting

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Legal Animation: Learn About the Four Types Used in the Courtroom

The art and science of animated trial graphics has evolved dramatically over the past 10 years.

Animation used to refer only to 3-D animations that were produced with programs such as Autodesk Maya or Autodesk 3ds Max, formerly 3D Studio MAX.

Now a much broader array of animation tools is available to the courtroom animator, and each one has its own niche and its own strong points. We are able to provide animations of all of these varieties in- house, and we work with our clients to select the one that is best in terms of persuasive power, applicability to the problem at hand, and cost. We have done this since 1995.

PowerPoint Animation

PowerPoint Animation has become by far the most widely used type of animation today. Only 5 percent or so of all courtroom animation 10 years ago, it now amounts to as much as 90 percent today. It is a flexible tool that is adaptable to many types of cases and many types of illustrations.

For example, this PowerPoint demonstrative illustrates how airbags are designed to deploy in a frontal collision, a side collision, and an oblique collision. This brief animation uses high-quality technical illustration along with PowerPoint to illuminate the airbag technology for a patent infringement case.

along with PowerPoint to illuminate the airbag technology for a patent infringement case. A2L Consulting |

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

2-D Animation

Two-dimensional animation, produced in a program like Adobe After Effects, can also be a very useful tool. It is quite inexpensive and has an immediate appeal to jurors.

In one case, for example, we provided a brief, sequential 2-D illustration of how the copper mining process works, from the raw ore to the finished product. When budget is at issue, this type of animation is ideal for describing complicated information to jurors.

is ideal for describing complicated information to jurors. 3-D Animation Three-dimensional animation is particularly

3-D Animation

Three-dimensional animation is particularly useful when small details, rather than broad outlines, are at issue. For example, in a patent trial where the workings of a toner bottle were at issue, we produced a graphic that showed the toner bottle in all three dimensions, so that the jurors could understand the unique technology that permits the toner to move through the grooves of the bottle. Here, a two- dimensional representation would not have been adequate to show how all the parts of the bottle work together. We also used close-up views to show precise details.

the parts of the bottle work together. We also used close-up views to show precise details.

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Using & Creating Litigation Graphics to Persuade

Using & Creating Litigation Graphics to Persuade

Flash Animation

Finally, we have used Flash animation to present long-form tutorial videos. Often, these are intended for judges rather than for juries. For example, we often use Flash to build patent tutorial videos that explain the background of the technology at issue in major patent litigation. Since a great deal of patent litigation occurs in the Eastern District of Texas, we have created many 30-minute tutorials for judges there that combine audio and video.

One good example is a demonstration that we provided of the workings of a “picking machine” in a hospital that uses both information technology and mechanical technology to translate a physician’s prescription orders to the actual selection by mechanical means of a medicine from an array of drugs.

by mechanical means of a medicine from an array of drugs. With animated trial exhibits finding

With animated trial exhibits finding their way into most cases with at least millions of dollars at stake, the modern litigator must be aware of the four courtroom animation options. Fluency in this language of animation will result in savings of time and money.

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Using & Creating Litigation Graphics to Persuade

Securities Litigation Graphics and Juror Communication

Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life.

Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.

In 2009, Kevin LaCroix, an attorney and insurance executive, wrote on his blog that covers issues of directors and officers liability, that in a particularly complicated securities case, an attorney referred in his opening statement to “EBIDTA; purchase accounting; debt service; noncash earnings; nonoperational accounting entries; free cash flow; liquidity; and dividends.” Another opening statement cited “negative cash flow; generally accepted accounting principles; and market capitalization,” and another referred to “options exercises; hedging and hedging transactions; and tax advantages.”

LaCroix concluded, “It is not that juries are incapable of figuring out these kinds of things. The problem is that these kinds of things put an enormous burden on the lawyers, the witnesses and the court to keep things clear; to avoid letting the trial get bogged down in technical minutiae; and making sure the jury is neither confused nor bored to death.”

We have produced litigation graphics that are appropriate for jurors at all levels of knowledge. One basic and successful trial exhibit that we prepared simply asks, “What Is a Stock Exchange?” and responds that like a supermarket for groceries, a stock exchange is simply a central location to purchase the stocks of various companies. This is illustrated by a graphic of a supermarket and of the New York Stock Exchange, with examples of what is offered at each.

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Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade Originally printed as a large format trial board, another

Originally printed as a large format trial board, another of our litigation graphics that answers a more sophisticated question is composed of 50,000 small dots, each representing the trade of 10,000 shares of stock. One tiny dot in the vast matrix represents the trades that were the subject of the lawsuit involving allegedly improper laddering transactions. The caption next to the dot reads, “Defying common sense, this dot would have to affect all others.” This caption appeals to jurors’ sense of logic, and the vast sea of dots is a memorable image.

caption appeals to jurors’ sense of logic, and the vast sea of dots is a memorable

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Using & Creating Litigation Graphics to Persuade

In yet another case, we produced a set of line graphs in PowerPoint to show that over a period of time, a major investment bank was reducing its exposure to one country’s debt privately, while promoting the debt publicly. Again, a graphic illustration forms a clear depiction of a basic securities-law principle: One shouldn’t say one thing publicly while doing the opposite in private.

say one thing publicly while doing the o pposite in private. By appealing to a juror's

By appealing to a juror's common sense and using litigation graphics, a trial team can persuade even the most financially ignorant in securities litigation.

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Using & Creating Litigation Graphics to Persuade

Environmental Litigation Demonstrative Exhibits and Trial Graphics

In a trial in which harm to the environment is at issue, the major challenge for any litigator is to present complex scientific information in a way that is easy for an average person to understand. For our litigation graphics consultants, this is true whether we are helping to represent an alleged polluter against a landowner or other person who alleges environmental damage, or whether it’s an insurance coverage case in which our client is asking an insurer to cover a claim under a business insurance policy.

In many cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades. In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.

Both sides in a major environmental case usually bring in environmental experts to help explain their side of the case to the jury. However, these experts are trained in science and engineering, not in information design, so their testimony, however scientifically compelling, may be presented in a way that is too complex to appeal to jurors. An astute expert knows that their testimony can be bolstered by the inclusion of a visual presentation and trial graphics.

Neil Shifrin, Ph.D., a Director at Gnarus Advisors LLC, a leading consulting firm specializing in expert analysis, litigation testimony and business advisory, says, “Clear, graphical presentations of complex scientific information can be critical to judge and jury understanding. Graphical portrayals are almost always superior to tabulated information, but the challenge is to keep it accurate while making it interesting and most pertinent. In court, it is true that a (good) picture is worth a thousand words.”

For example, Animators at Law produced a 3-D animation for an insurance coverage mediation. This showed that one block in a tank had been installed sideways by the property owner. As a result, oil, solvents and cleaning agents leaked into the spaces between cinder blocks over a period of time. Because this graphic was intended for a mediation, not a court case, we were free to use a glowing green color to highlight the pollutants a feature that would have been considered overly prejudicial in a jury trial under Rule 403.

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Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade In another case, we used a three-dimensional cross-section to

In another case, we used a three-dimensional cross-section to show the path that PCE (perchloroethene) plume took when it was released into the environment and how it ultimately contaminated the bedrock in the area and the water supply. This exhibit was built in PowerPoint and combines 3-D technical illustration with PowerPoint to create an animated effect in a cost effective manner.

illustration with PowerPoint to create an animated effect in a cost effective manner. A2L Consulting |

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Using & Creating Litigation Graphics to Persuade

Finally, in yet another case our task was to show that a particular piece of land was not a wetland under the applicable law. We used animated bar graphs to show water levels at test wells. These showed that groundwater did not stay close enough to the surface for the area to be considered a wetland. The key to this exhibit was that it was not static in time. It used data taken from several consecutive years to show a moving water level that at no point reached the required level of one foot.

that at no point reached the required level of one foot. In each of these examples,

In each of these examples, complex concepts were distilled down to an easily digestible level using trial exhibits. Care should be taken in environmental litigation to ensure that any judge or juror can quickly understand the information being presented.

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Using & Creating Litigation Graphics to Persuade

Defeating Class Certification with Trial Presentation Graphics

When a major company is the target of a purported class action filed by consumers who say that they are representative of a large group that have common claims against the company, the issue of class certification becomes a crucial one. The viability of the case often stands or falls on the issue of certification.

Federal Rule 23 imposes four requirements for a class action: (1) the class must be so large as to make individual suits impractical, (2) there must be legal or factual claims in common, (3) the claims or defenses must be typical of the plaintiffs or defendants, and (4) the representative parties must adequately protect the interests of the class. Many states follow the federal requirements or have their own, similar, requirements.

Whether the case was filed under state or federal law, one of the key practical requirements for a class action is that the issues that members of the purported class have in common must predominate over the issues that are distinctive to each specific member of the class.

As is correctly noted in this article describing class actions, in many cases, the party seeking certification must show that common issues between the class and the defendant will “predominate” in the proceedings, as opposed to individual fact-specific issues that can arise between class members and the defendant.

Graphic demonstrations can be used in many aspects of class actions, and the issue of “predominance” is one in which they are particularly helpful. In Stonebridge Life Insurance Co. v. Pitts, we created an interactive trial exhibit, using PowerPoint, for a hearing to try to defeat class cert in a Texas state court. In this case, plaintiffs claimed that they had all ended up purchasing insurance that they did not want, as a result of a telemarketing program run by the defendant that included a negative option. They sought to certify a class action that would, they hoped, eventually provide restitution of their insurance premiums.

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Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade Our trial exhibit highlighted the important differences between the

Our trial exhibit highlighted the important differences between the class representatives, the class members, and other customers (asserting consumer protection claims). By clicking on hot spots on the exhibit, the user is able to call up customer quotes that clearly show that different consumers who were purported class members had distinctly different concerns from each other and thus that the common issues did not “predominate.”

“It was easy and convenient to have the premiums automatically charged on my Penney’s account,” one consumer was quoted as saying. Another said simply, “I called Stonebridge and changed my address.” Another said, “I received a partial refund.”

Without the clear trial presentation graphics that we provided, it would have been difficult for anyone to understand the wide diversity of experiences and attitudes that members of the supposed class had actually had. This is another instance in which “showing” is better than just “telling.” Class certification was ultimately defeated.

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Using & Creating Litigation Graphics to Persuade

Construction Litigation Graphics:

Construction Delay or Defect

Construction cases are among the most difficult for even the most experienced litigator to present to a jury.

As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has written on a construction blog, trials involving construction defects, failures to perform up to specifications, scheduling problems, and similar issues create many practical problems for trial lawyers.

Greenberg notes that jurors often become lost in technical jargon, don’t understand the sequence of activities required to complete a construction project or the relationships and responsibilities of the various parties, and fail to see why every major construction project is truly unique and cannot be compared to producing widgets in a factory.

Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he testified, a jury found that a design professional violated the standard of care, caused a six-month delay to the opening of a new hospital wing, and was responsible for the need to rework various essential systems, but was assessed only one dollar in damages by the jury.

Clearly, many otherwise skillful attorneys have often failed to do a good job in persuading juries to award damages to their clients, even when there has been considerable proof of a significant loss.

We are aware of all these issues and problems, and we have prepared a number of trial presentations that have successfully set forth a complex set of facts in a way that is appealing and intuitive to jurors.

The “Construction Litigation Graphics Showing Construction Delay” animation covers months of construction in less than three minutes, using small boxes to represent panels needed in the project and to show how many areas were left unfilled during construction. This gives jurors a clear picture of the delay that occurred in this particular instance.

This gives jurors a clear picture of the delay that occurred in this particular instance. A2L

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Using & Creating Litigation Graphics to Persuade

In a construction project, delays in one part of the project often have cascading effects and cause construction delay in the entire project. Jurors often have a hard time understanding the concept of a “critical path” – a sequence of activities that must be followed in order to get the project done. This idea is developed on a visual basis in the below overview trial exhibit, “Understanding Construction Schedule Charts.” We use standard construction chart flags, colored bars, and other graphic devices to introduce the subject.

bars, and other graphic devices to introduce the subject. A typical construction defect case, involving an

A typical construction defect case, involving an inadequate technique for soil compaction, is clearly explained in our trial graphic, “Actual vs. Recommended Structural Compacted Fill.” Here we show graphically how a building footing was placed on top of unsuitable or uncompacted soils, potentially leading to serious damage.

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Using & Creating Litigation Graphics to Persuade
Using & Creating Litigation Graphics to Persuade These trial exhibits show the breadth of ways in

These trial exhibits show the breadth of ways in which we can make complex construction concepts clearer to juries.

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Using & Creating Litigation Graphics to Persuade

6 Ways to Convey Size and Scale to a Jury

All good trial exhibits have one thing in common: They are able to appeal to juries by referring to ideas, principles, objects, or locations that jurors already know about in their daily lives.

For example, a trial lawyer may need to show how large, or how small, something at issue in the litigation actually is. An effective way of doing this is to relate it to the size or scope of an object with which a juror has personal experience.

We have prepared many exhibits that work in this manner. Not only do they give the jurors useful information but they also do this in a manner that jurors will easily recall when it comes time to deliberate. If we can present something as being “as large as a football field,” for example, we can lock that picture into the jurors’ minds.

1) HOW FAST: In the below graphic that we used in a medical malpractice case, evidence showed that a radiologist rushed his work and missed cancer diagnoses. He read X-ray films three times as fast as an average radiologist. What did that mean? Jurors know that “speed kills,” and a very effective trial exhibit compared that speed to traveling three times the speed limit on a highway 210 miles per hour instead of 70. That intrinsically seems reckless.

on a highway – 210 miles per hour instead of 70. That intrinsically seems reckless. A2L

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Using & Creating Litigation Graphics to Persuade

2) HOW MUCH TIME: In the graphic below, evidence proved that conspirators in a government contract dispute in New Orleans had spent 3,548 minutes on the phone. That number by itself would probably mean nothing to a jury. We translated that fact into a graphic that showed that in 3,548 minutes, someone could drive from New Orleans to Wasilla, Alaska (an election year reference). In that amount of time, a lot of conspiring could be accomplished.

amount of time, a lot of conspiring could be accomplished. 3) HOW LITTLE IMPACT: In a

3) HOW LITTLE IMPACT: In a securities case, we likened the plaintiff’s allegation that a single stock purchase affected the stock price of a company for 14 months to the notion that a single runner’s taking the lead in a marathon for eight minutes affected all 35,000 contestants in the three- to four-hour race. That defies common sense, and jurors could conclude that the allegation regarding the stock price also defied common sense.

could conclude that the allegation regarding the stock price also defied common sense. A2L Consulting |

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Using & Creating Litigation Graphics to Persuade

4) HOW MANY: In a Miami discovery dispute, we provided a graphic (below) of Pro Player Stadium (the then name of what is now the city’s Sun Life Stadium), with a seating capacity of 75,000. If that was the universe of all the documents at issue, the number that related to one client was a small portion of one section of the stadium, we showed.

a small portion of one section of the stadium, we showed. 5) HOW LITTLE: In an

5) HOW LITTLE: In an environmental case, our exhibit (below) showed that the cleanup costs at issue, when compared with the company’s annual sales, were the proverbial “drop in a bucket.” That is far easier for a juror to remember than the numbers $20 million out of $4.4 billion.

is far easier for a juror to remember than the numbers $20 million out of $4.4

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Using & Creating Litigation Graphics to Persuade

6) HOW MUCH: In this environmental insurance coverage litigation exhibit, the capacity of an underground tank farm is related to above ground pools. It was a small amount of property and the capacity of the tanks was surprising when conveyed in this way.

amount of property and the capacity of the tanks was surprising when conveyed in this way.

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Using & Creating Litigation Graphics to Persuade

Trial Presentation Services: Not Just for Big Defense Teams

by Theresa Villanueva, Esq., Director, Litigation Consulting, A2L Consulting

A common misconception I hear is that trial presentation

services are just for big defense teams who have clients with deep pockets. This could not be further from the truth. While, yes it is true that many of our clients are large firms involved in high stakes litigation, that is just one part of our client base. We have many small or mid-size firms that we work with frequently.

The use of trial presentation services is not specific to the size of the firm or the type of case, but more so to the type

of the firm or the type of case, but more so to the type of attorney.

of

attorney. The modern litigator has a solid understanding

of

the need for trial services. An attorney that understands the value add of demonstrative exhibits, trial

technology, and jury consulting is the type of attorney that is likely to be a client, regardless of the size of the firm in which they work. Yes, it is true their needs and budgets may be different but there are many large firms with budgetary constraints as well. Hence, in reality the size of the firm does not matter.

Smaller and mid-size firms utilize the same services as their larger counterparts and are just as likely to

have a case that warrants the use of trial graphics and trial technology services.

necessarily mean small case. Many clients today are looking to the smaller or mid-size firms and even boutique firms because they prefer the intimate atmosphere and personal touch of these firms. Also, many smaller or boutique firms specialize in a specific area of law, and hourly rates can be more

manageable without sacrificing the quality of the work.

Small firm does not

Attorneys with smaller and mid-sized firms frequently engage us for trial, mediations or arbitrations, as do larger firms. Moreover, smaller or mid-sized firms use the same if not a more varied array of services. Not only are they just as likely to engage us for our trial consulting, jury consulting, trial graphics and trial technology services, they are also apt to utilize e-brief services and more likely to use less common trial presentation services such as preparing demonstrative exhibits to be incorporated into their trial briefs or to be used with depositions.

It is the familiarity and desire to reach the audience the drives attorneys to explore and use

demonstrative evidence and technology. The “CSI Effect” has infiltrated our living rooms, and the expectations of our legal audience have been set. Thus it is more common than not to see some type of trial graphics or trial technology in courtrooms today. The savvy litigator recognizes the added value of consulting services whether a member of a large firm, mid-sized firm, or small firm, and acknowledges this as part of the litigation process.

As new attorneys graduate and enter the work force, the probability that their educational career has been based on and dependent on the use of technology greatly increases. These same graduates will embark on their careers among big and smaller firms alike thus bringing with them the understanding of

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Using & Creating Litigation Graphics to Persuade

the need to reach the audience visually. The increased exposure to technology increases the likelihood they will want to “teach” using some type of technology interface. Add to that the fact that if our up and coming attorneys have been using technology throughout their lifetime, it is safe to say that their audience has had the same exposure, and has the same expectation of some type of “high tech” presentation.

Trial presentation services are determined for each new case. The scope of the trial (mediation or arbitration) is assessed, appropriate services are recommended and budgets are set. Frequently we work with small and large firms to make sure they and their client are happy about the services decided upon as well as the cost associated for these services. The common denominator is these firms see the benefit of using demonstrative exhibits and trial technology to help win their case.

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Using & Creating Litigation Graphics to Persuade

Litigation Graphics: The Power of Checklist Trial Exhibits

By Kenneth J. Lopez, J.D., Founder & CEO, A2L Consulting

Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key issues and in making it easier for them to recall the important elements of a case.

In the trial context, checklists are usually presented as straightforward representations of the factual or legal elements of a case that can be filled in with a yes or no answer.

These apply accepted principles of human psychology. A good salesperson can often take control of a conversation by getting a prospect to answer his or her questions with a series of “yeses.” A great speaker can engage an audience by using repetition artfully to carry the audience along. Similarly, a checklist can help make technical points much clearer and can help a judge or jury organize material that is potentially difficult by breaking it into smaller pieces.

An article published in April 2007 in Champion, the magazine of the National Association of Criminal Defense Lawyers, discussed a study that tested whether jurors gain a better understanding of complex evidence related to mitochondrial DNA (mtDNA) if they are given a checklist that guides them through the evidence by asking them a series of questions.

The study, funded by the National Institute of Justice, concluded that “jurors provided with an mtDNA checklist performed better (on an expanded Jury Comprehension Scale) than those without access to the checklist.The jurors understood the complex testimony of expert witnesses better if they had a checklist to break down the issues. Accordingly, the NACDL recommended that practitioners consider using checklists, among other techniques, to increase juror comprehension.

among other techniques, to increase juror comprehension. For example, by paying attention to the medical malpractice

For example, by paying attention to the medical malpractice checklist below that we prepared as a trial exhibit, jurors could easily understand that the patient experienced the same symptoms before the alleged malpractice as afterwards and that damages should not be awarded. Although tens of millions of damages were alleged, none were awarded. Listing six different symptoms and having each one answered in precisely the same way not only breaks the evidence down in a comprehensible manner; it also places the jurors in the habit of answering in the same fashion for each symptom.

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